Decision Emphasizes David House's First Amendment-Protected Associations

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BOSTON – A federal judge late Wednesday denied the government's motion to dismiss a lawsuit challenging the suspicionless search and seizure of electronics belonging to activist David House when he reentered the U.S. after a vacation.

The American Civil Liberties Union and the ACLU of Massachusetts represent House in a suit charging that the government targeted House based on his lawful association with the Bradley Manning Support Network, an organization created to raise funds for the legal defense of the soldier accused of leaking material to WikiLeaks. The government had asked the court to dismiss the case, arguing that it has broad powers to search and seize laptops, phones and any other electronic device at the border without any justification.

"This ruling affirms that the constitution is still alive at the U.S. border," said Catherine Crump, staff attorney with the ACLU’s Speech, Privacy and Technology Project, who argued the case along with John Reinstein of the ACLU of Massachusetts. "Despite the government's broad assertions that it can take and search any laptop, diary or smartphone without any reasonable suspicion, the court said the government cannot use that power to target political speech."

The decision allows the case to move forward to the evidence-gathering stage, which could reveal why House became the subject of a government inquiry and which government agencies copied or viewed the contents of his laptop, phone and camera.

While the court held that the government does not need suspicion to search a laptop at the border, it also held that the government's power to search was not unlimited. U.S. District Court Judge Denise Casper wrote that the fact that "the initial search and seizure occurred at the border does not strip House of his First Amendment rights, particularly given the allegations in the complaint that he was targeted specifically because of his association with the Support Network." The judge also acknowledged the complaint's allegations that "the search of House's laptop resulted in the disclosure of" the Support Network's supporters and internal communications and that these disclosures "will deter further participation in and support of the organization."

In November 2010, Department of Homeland Security agents stopped House at O'Hare International Airport in Chicago and questioned him about his political activities and beliefs. Officials then confiscated his laptop computer, camera and a USB drive and did not return them for nearly seven weeks. The government has not said what it did with House's possessions during that period. House's detention and interrogation and the seizure of his electronic papers and personal effects had no apparent connection with the protection of U.S. borders or the enforcement of customs laws.

The court ruled that even if the government could legally search House's devices at the border, this does not mean that agents could take and keep those devices for nearly seven weeks. Without some reasonable relationship between the original search and the extended seizure, the judge said, government agents may not "seize personal electronic devices containing expressive material, target someone for their political association and seize his electronic devices and review the information pertinent to that association and its members and supporters simply because the initial search occurred at the border."

The ruling is available at:

www.aclu.org/files/assets/house_v._napolitano_-_ruling_on_motion_to_dism...

More information on the case is at:

www.aclu.org/free-speech/house-v-napolitano