

From a DHS report



DHS letter to the Army CIC

The Associated Press reports that House, who relied on that Asus PC for his work, had no sign that the seizure was coming. During the questioning several months prior, the government made no suggestion that it sought the contents of his hard drive. Were it to want to search the device at that point, of course, it would need a warrant. Once House arrived in the international zone at O'Hare, however, that need was obviated.

The AP report includes a statement from a spokesman for Customs and Border Patrol, Michael Friel:

"Any allegations about the use of the CBP screening process at ports of entry for other purposes by DHS are false," Friel said. "These checks are essential to enforcing the law, and protecting national security and public safety, always with the shared goals of protecting the American people while respecting civil rights and civil liberties."

The limits constraining those checks are also very loosely defined. The Atlantic Wire spoke by phone with Rachel Levinson-Waldman, counsel to the Brennan Center for Justice’s Liberty and National Security Program.

"There's been a sort of historic exception to the Fourth Amendment at the border," Levinson-Waldman said. "It was at first for safety reasons — the government has an interest in making sure that suspicious people, dangerous people …. aren't entering the country." Then, those restrictions loosened. First, to include those leaving the country. Then, allowing for searches in the even of suspicious activity in the 1970s. In the 1980s, to include "routine" searches that weren't necessarily predicated on suspicion of criminal activity.

In 2009, then-Homeland Security Secretary Janet Napolitano outlined new directives to "combat transnational crime and terrorism while protecting privacy and civil liberties" at the border. As the AP reports, a judge earlier this year ruled that "the government should have reasonable suspicion before conducting a comprehensive search of an electronic device," but the scope of the ruling was limited. House's case was an exception, identifying him as a person of interest and thereby allowing his data to be accessed. But that high standard may not have been necessary. Saying that seizure at the border was "a very simple way of getting access to his documents," Levinson-Waldman indicated that this wasn't unusual. "The most common place to do these searches has been at the border," Levinson-Waldman said. "It's the easiest. A lot of people take issue with it, but [the border] is a fairly recognized exception in the law."

So what constitutes a border? On land, Levinson-Waldman said, it's the zone surrounding the border itself. When arriving in the United States by sea or air, it's your first landing point, not the actual mid-ocean or mid-flight crossing. When House arrived at O'Hare, he was at a border crossing, in effect. And although it is "an extension of the country itself," as Levinson-Waldman put it, it afforded the government its opportunity to take possession of his laptop.