WASHINGTON — Newly disclosed U.S. government files provide an inside look at the Homeland Security Department’s practice of seizing and searching electronic devices at the border without showing reasonable suspicion of a crime or getting a judge’s approval.
The documents published Monday describe the case of David House, a young computer programmer in Boston who had befriended Army Pvt. Chelsea Manning, the soldier convicted of giving classified documents to WikiLeaks. U.S. agents quietly waited for months for House to leave the country then seized his laptop, thumb drive, digital camera and cellphone when he re-entered the United States. They held his laptop for weeks before returning it, acknowledging one year later that House had committed no crime and promising to destroy copies the government made of House’s personal data.
The government turned over the federal records to House as part of a legal settlement agreement after a two-year court battle with the American Civil Liberties Union, which had sued the government on House’s behalf. The ACLU said the records suggest that federal investigators are using border crossings to investigate U.S. citizens in ways that would otherwise violate the Fourth Amendment.
The Homeland Security Department declined to discuss the case.
Landing on the watchlist
House said he was 22 when he first met Manning, who now is serving a 35-year sentence for one of the biggest intelligence leaks in U.S. history. It was a brief, uneventful encounter at a January 2010 computer science event. But when Manning was arrested later that June, that nearly forgotten handshake came to mind. House, another tech enthusiast, considered Manning a bright, young, tech-savvy person who was trying to stand up to the U.S. government and expose what he believed were wrongheaded politics.
House volunteered with friends to set up an advocacy group they called the Bradley Manning Support Network, and he went to prison to visit Manning, formerly known as Bradley Manning.
It was that summer that House quietly landed on a government watchlist used by immigrations and customs agents at the border. His file noted that the government was on the lookout for a second batch of classified documents Manning had reportedly shared with the group WikiLeaks but hadn’t made public yet. Border agents were told that House was “wanted for questioning” regarding the “leak of classified material.” They were given explicit instructions: If House attempted to cross the U.S. border, “secure digital media,” and “ID all companions.”
But if House had been wanted for questioning, why hadn’t federal agents gone back to his home in Boston? House said the Army, State Department and FBI had already interviewed him.
Instead, investigators monitored passenger flight records and waited for House to leave the country that November for a Mexico vacation with his girlfriend. When he returned, two agents were waiting for him, including one who specialized in computer forensics. They seized House’s laptop and detained his computer for seven weeks, giving the government enough time to try to copy every file and key stroke House had made since declaring himself a Manning supporter.
President Barack Obama and his predecessors have maintained that people crossing into U.S. territory aren’t protected by the Fourth Amendment. That policy is intended to allow for intrusive searches that keep drugs, child pornography and other illegal imports out of the country. But it also means the government can target travelers for no reason other than political advocacy if it wants, and obtain electronic documents identifying fellow supporters.
House and the ACLU are hoping his case will draw attention to the issue, and show how searching a suitcase is different than searching a computer.
“It was pretty clear to me I was being targeted for my visits to Manning (in prison) and my support for him,” said House, in an interview last week.
Flagging travelers’ files
How Americans end up getting their laptops searched at the border still isn’t entirely clear.
The Homeland Security Department said it should be able to act on a hunch if someone seems suspicious. But agents also rely on a massive government-wide system called TECS, named after its predecessor the Treasury Enforcement Communications System.
Federal agencies, including the FBI and IRS, as well as Interpol, can feed TECS with information and flag travelers’ files.
In one case that reached a federal appeals court, Howard Cotterman wound up in the TECS system because a 1992 child sex conviction. That “hit” encouraged border patrol agents to detain his computer, which was found to contain child pornography. Cotterman’s case ended up before the 9th U.S. Circuit Court of Appeals, which ruled this spring that the government should have reasonable suspicion before conducting a comprehensive search of an electronic device; but that ruling only applies to states that fall under that court’s jurisdiction, and left questions about what constitutes a comprehensive search.
In the case of House, he showed up in TECS in July 2010, about the same time he was helping to establish the Bradley Manning Support Network. His TECS file, released as part of his settlement agreement, was the document that told border agents House was wanted in the questioning of the leak of classified material.
It wasn’t until late October, though, that investigators noticed House’s passport number in an airline reservation system for travel to Los Cabos. When he returned to Chicago O’Hare airport, the agents waiting for him took House’s laptop, thumb drive, digital camera and cellphone. He was questioned about his affiliation with Manning and his visits to Manning in prison. The agents eventually let him go and returned his cell phone. But the other items were detained and taken to an ICE field office in Manhattan.
Seven weeks after the incident, House faxed a letter to immigration authorities asking that the devices be returned. They were sent to him the next day, via Federal Express.
By then agents had already created an “image” of his laptop, according to the documents. Because House had refused to give the agents his password and apparently had configured his computer in such a way that appeared to stump computer forensics experts, it wasn’t until June 2011 that investigators were satisfied that House’s computer didn’t contain anything illegal. By then, they had already sent a second image of his hard drive to Army criminal investigators familiar with the Manning case. In August 2011, the Army agreed that House’s laptop was clean and promised to destroy any files from House’s computer.
Destruction, not dollars
Catherine Crump, an ACLU lawyer who represented House, said she doesn’t understand why Congress or the White House would leave the debate up to the courts.
“Ultimately, the Supreme Court will need to address this question because unfortunately neither of the other two branches of government appear motivated to do so,” said Crump.
House, an Alabama native, said he didn’t ask for any money as part of his settlement agreement and that his primary concern was ensuring that a document containing the names of Manning Support Network donors didn’t wind up in a permanent government file. The court order required the destruction of all his files, which House said satisfied him.
He is writing a book about his experiences and his hope to create a youth-based political organization. House said he severed ties with the Support Network last year after becoming disillusioned with Manning and WikiLeaks, which he said appeared more focused on destroying America and ruining lives than challenging policy.
“That era was a strange time,” House said. “I’m hoping we can get our country to go in a better direction.”