Americans are protected from warrantless search in America — but not at the nation's borders. The imaginary line separating the United States from the rest of the world has become a critical demarcation for the privacy of the country's citizens, as new documents from the ACLU and the ongoing Snowden leaks make clear.
David House, above, worked as a fundraiser for the defense of Chelsea Manning in her court-martial for uploading classified information to Wikileaks. That brought him to the attention of the government, perhaps predictably; he was questioned by authorities about his relationship to the Army private. What he didn't know, though, is that he'd been flagged in the Department of Homeland Security's TECS system. (TECS is not an acronym for anything.) That flag, according to documents obtained by the ACLU, looked like this.
The government thought that House might be in possession of documents that Manning planned to leak, but hadn't. So when House traveled to Mexico in 2010, he triggered an alert from the DHS and was met at Chicago's O'Hare airport on his return. DHS agents seized House's electronic devices, extracted the data, and sent it to the Army's Criminal Investigation Command.
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.
The importance of crossing the border also comes into play in the activity of the NSA. As The New York Times reported last month the agency searches some emails between the people in the United States and those overseas for particular triggers. In that case, the idea of the "border" is much more vague. How and when an email is exchanged between an American and a non-American is subjective in a way that affords the agency a lot of flexibility in its assessments. We asked Levinson-Waldman why the NSA is allowed to use the crossing of a virtual border as an excuse to conduct a search. Was it because the government's secret Foreign Intelligence Surveillance Court said so? No, "because Congress said so," she replied. "The FISC has really engaged in enormously broad — shockingly broad — interpretations of what FISA means and how the government can use its authority under FISA." But: "That was essentially a Congressional decision."
The differences between the searches conducted by the NSA and the DHS are many. The former is private and secret; the latter unavoidably public. By appealing to the government, House got his computer back, got a record of the interaction, and uncovered what happened. That doesn't happen with NSA searches. But the two types of search do have one thing in common — they reflect an apparent willingness of the government to use the blurry distinction between being inside and outside of the United States as an excuse to step around constitutional privacy protections.