Carol Rose writes the On Liberty blog and is executive director of the American Civil Liberties Union of Massachusetts.
When David House, a computer programmer and U.S. citizen who lives in Cambridge, Massachusetts, returned to the U.S. from a vacation in Mexico in early November, Homeland Security agents at the airport seized his laptop, flash-drive, and video camera. There was no suggestion that House had broken any law or that his computer contained any material subject to lawful seizure.
But seven weeks later, the government still hadn’t given them back, so House and the ACLU joined forces earlier this week to send a formal letter demanding their return.
Yesterday, David’s equipment showed up in the mail. Voila!
Of course, I’m all in favor of flexing some ACLU muscle to get Homeland Security to back down from suspicionless searches. But what we really need is a system-wide fix that will stop government agents from repeatedly misusing their border authority to seize and search laptops of Americans based solely on their protected political activity.
You see, this wasn’t an isolated case. Homeland Security is making of habit of using its border authority to conduct warrantless searches of Americans leaving and reentering their own country.
Earlier this fall, the ACLU filed a lawsuit on behalf of Pascal Abidor, a 26-year-old dual French-American citizen who had his laptop searched and confiscated at the Canadian border. Abidor was travelling from Montreal to New York on an Amtrak train in May 2010 when he had his laptop searched and confiscated by Customs and Border Patrol officers. Abidor, a grad student in Islamic Studies, was questioned, handcuffed, taken off the train and kept in a holding cell for several hours before being released without charge. When his laptop was returned 11 days later, there was evidence that many of his personal files, including research, photos and chats with his girlfriend, had been searched. The ACLU sued on behalf of both Abidor and two other groups of ordinary Americans affected by warrantless searches at the border: press photographers and lawyers.
What makes the experience of David House particularly chilling is the fact that he was singled out for a warrantless search and seizure of his computer solely based on his political associations, namely, his involvement in the Bradley Manning Support Network. The network was formed to raise funds and otherwise support a legal defense for Bradley Manning, the American serviceman charged with the unauthorized disclosure of classified materials to Wikileaks.
House was targeted and his laptop seized by government agents simply because he was involved in a legal defense effort on behalf of someone that our government has locked away (in reportedly terrible conditions), and who has not yet had a fair trial.
Meanwhile, Homeland Security still hasn’t returned the laptop and cellphones seized from programmer Jacob Appelbaum at the border without a warrant last July.
As Glenn Greenwald of Salon.com notes today: “This outrageous practice -- seizing and storing the electronic communications of American citizens with no charges or even any warrants -- is not confined to WikiLeaks; many legitimate American critics of the government are subjected to this repeatedly when they re-enter the country…”
Trolling through laptops in search of membership lists and contacts is particularly alarming, since it violates the right to association under the First Amendment. The U.S. Supreme Court said so -- unanimously – back in 1958, when the state of Alabama tried to force the National Association for the Advancement of Colored People (NAACP) to reveal to the names and addresses of all its members
The unanimous Supreme Court held that forcing the NAACP and other groups to disclose membership lists would have the effect of suppressing legal associations among the group's members.
The right of everyone – especially political dissidents -- to be free from government prying without a warrant is what James Otis, the Massachusetts lawyer and mentor to John Adams, railed against in his famous speech “Writs of Assistance” back in 1761.
Preventing suspicionless searches became one of the key rallying cries of the American Revolution and the basis for our Fourth Amendment right against unreasonable government search and seizure of our personal papers and effects.
Are we truly so frightened of the WikiLeaks revelations that we are willing to give up these hard-won constitutional freedoms? If so, we’re starting to sound like the “new” Russia – where the Moscow Police chief was quoted yesterday as
saying that things like freedom of travel and defense of civil liberties may “not be practical” anymore. This statement came on the heels of another announcement: that a Moscow newspaper controlled in part by former Soviet leader Mikhail Gorbachev will join forces with WikiLeaks to expose corruption in Russia. Small world!
I, for one, don’t want America to imitate Russia when it comes to civil liberties. But we must re-assert our support for fundamental liberties or risk losing them. James Otis did it for us in 1761 and the NAACP did it again in 1958. It’s nearly 2011, and it’s our turn to stand up for freedom.