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E-searches and seizures at US borders ‘more invasive’ than traditional searches

Following the case of David Miranda, whose electronic devices were confiscated in August by British authorities at Heathrow Airport, a US watchdog reports that similar abuses of power are happening at US borders.

The American Civil Liberties Union (ACLU) has released documents showing how US authorities, exceeding their powers in the name of protecting the country from terrorism and other threats, are involved in a widespread, largely secretive program that empowers the government to search and seize American citizens’ electronic devices at the border.

According to US government data, an estimated 4,957 travelers to the US had their electronic devices searched between October 1, 2012 and August 31, 2013, while an additional 4,898 people were subject to similar searches the previous year.

The ACLU report focused on the case of David House, who previously worked with the Bradley Manning Support Network. House was detained by Department of Homeland Security (DHS) agents at Chicago’s O’Hare International Airport in November 2010.

House’s case is similar to that of Miranda, the partner of Glenn Greenwald, an investigative journalist with The Guardian who broke the story on NSA whistleblower Edward Snowden. British authorities justified Miranda’s detention for nine hours, and the confiscation of his electronic devices, under a controversial law – Schedule 7 of the UK Terrorism Act 2000.

As was the case with House, Miranda was detained by the authorities and forced to endure a drawn-out criminal investigation.

Government agents interrogated House about his political activities and beliefs. He was also forced to surrender his laptop, camera and USB drive to officials for seven weeks.

The ACLU report states: “[E]ven after the government returned House’s physical devices, it continued to actively investigate copies of his files for nearly six more months.”

The ACLU filed a federal lawsuit on House’s behalf, arguing that the government took action against House solely because of his association with the Bradley Manning Support Network, “violating both his First Amendment right to freedom of association and his Fourth Amendment right to be free from unreasonable searches and seizures.”

In March 2012, the judge in the case ruled that even though the US government does not require a warrant to search people’s electronic devices at the country’s borders, that power is not unlimited and First Amendment rights still apply.

Eventually, the US government agreed to a settlement wherein it would destroy all of the personal data it had acquired from House’s electronic devices, and also turn over documents related to its investigation of House and the search of his personal effects.

The ACLU revealed how the Homeland Security Investigations (an Immigration and Customs Enforcement (ICE) subdivision that is now the second-largest law enforcement agency in the United States) entered a so-called “lookout” into a government database called TECS (see the document here), thereby notifying US agents nationwide that House was wanted for questioning in connection with the Department of Justice’s investigation into Manning and WikiLeaks, the whistleblower website.

(US Army PFC Chelsea Manning, formerly known as Bradley Manning, was sentenced by a US military court last month to 35 years in prison for releasing hundreds of thousands of military reports to Wikileaks.)

As a result of the nationwide warning system, which was linked to the Advance Passenger Information System, HSI was able to receive an automated notification that House would be taking a trip outside of the United States and that he was scheduled to return through Chicago on November 3, 2010.

The ACLU report said the US government was abusing its power to protect US borders from terrorism in order to interrogate an individual over political issues.

“House’s case provides a perfect example of how the government uses its border search authority to skirt the protections afforded by the Fourth Amendment,” the civil rights watchdog stated. “The government enjoys wider latitude to search people and their belongings at the border than it possesses elsewhere, for the purpose of protecting our borders.”

The documents in possession of the ACLU also show that HSI was “acting in cooperation with – and perhaps at the request of – the Department of Justice, the Department of State, and the Army’s Criminal Investigative Division, not to protect our borders but to further a domestic investigation of the WikiLeaks disclosures.”

House’s connection to the Manning case made him an unwitting target of the investigation, the report said. The US government then used its access to airline passenger information to determine when and where House and others would be entering the United States (see the document here), and “laid in wait to seize his computer and other electronic devices,” the report said.

The documents say the US government is able to use “sophisticated forensics software” to carry out intrusive searches of personal documents stored on today’s electronic devices.

The report described the US government’s process for searching electronic devices at the border as “not reassuring” because the details of how it organizes these searches largely remain a secret.

The watchdog also said that electronic device searches “are substantially more invasive than traditional border searches, which is why this particularly intrusive form of government surveillance should not be conducted without reasonable suspicion.”

Although ICE’s policy states that electronic device searches should generally be completed within 30 days, it required up to seven months for the government to complete its search of House’s electronic information. In the course of the government’s investigation, the contents of House’s data were “shared with another government agency, the Army Criminal Investigation Division,” the ACLU reported.

The ACLU report concluded: “We have no way of knowing how many of those searches may have been carried out not to search for contraband – which is the reason ICE has been granted such broad search powers – but to exploit border search powers to evade the Constitution.”