User:Keien Ohta/House v. Napolitano

House v. Napolitano (D. Mass., 2012) is a United States court case involving David House, a supporter of Chelsea Manning and co-founder of the Manning Support Network, whose electronic devices were searched and seized by federal agents at the border. House brought action against Janet Napolitano, Secretary of the United States Department of Homeland Security(DHS), Alan Bersin, Commissioner of the U.S. Customs and Border Protection(CBP), and John T. Morton, Director of the U.S. Immigration and Customs Enforcement(ICE) (collectively referred to as "Defendants"), and Defendants moved to dismiss the action; the court denied the Defendants' motion on the grounds of First Amendment and Fourth Amendment protection. House subsequently reached a settlement with the government to return or destroy all information that the government obtained from House.

Background
On November 3rd, 2010, House arrived at O'Hare International Airport after a vacation in Mexico. After a brief search at customs, House was approached by two government agents, who stopped him and seized his electronic devices, including his laptop, USB flash drive, video camera, and cellphone, without House's consent. House was then taken to an interrogation room and questioned about his associations with the Manning Support Network and WikiLeaks. Upon finishing the interrogation, the agents returned only House's cellphone, stating that his other devices would be returned within a week.

Forty-eight days later, with none of his devices having been returned, House, with the help of the ACLU of Massachusetts, sent a letter to the DHS, CBP, and ICE, requesting that the devices be returned, and that information regarding the chain of custody and whether or not information was copied from his devices. The DHS returned House's devices the following day, but without any custody information.

On May 13, 2011, House filed a lawsuit against the Defendants, on the account that the search and seizure of his devices violated his rights under the First and Fourth Amendment; specifically the retention and dissemination of information on his computer regarding his work and his relations to the Manning Support Network violated his First Amendment freedom of association.

Fourth Amendment Challenge to the Initial Search and Seizure
The Fourth Amendment guarantees "the right of the people to be secure in their persons...and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause..." However, the Supreme Court has stated that searches at the border are inherently reasonable because the government has a right to protect itself and its country (see also: border search exception); hence no reasonable suspicion is needed to conduct routine searches at the border. There are exceptions for "nonroutine searches" and "highly intrusive searches" such as strip search, body cavity search, or x-ray searches, though the Supreme Court has declined to clarify what level of suspicion is required. Also, a search carried out in a highly offensive or destructive manner can also be required to have some level of suspicion, though again these circumstances are not clarified.

House alleged that the search of his devices were "highly intrusive" because of the personal nature of the information contained in the devices, and were also carried out in an offensive manner. Regarding the first point, the only types of searches that have been consistently identified in court as highly intrusive are body cavity and strip searches; furthermore, the Supreme Court has defined several factors in determining whether or not a search is "highly intrusive," most of which involve physical contact and force. Though House argues that the search of his personal electronic devices was like an intrusion of his thoughts, ideas, and communication with others, the court determined that this is not the same kind of "highly intrusive search of a person" as body cavity and strip searches. Instead, they compare House's search to the search of suitcases and other personal containers containing personal information. Recalling United States v. Arnold, the court notes that there need not be reasonable suspicion to search a laptop or other electronic devices at the border; hence the initial search and seizure of House's devices did not violate his Fourth Amendment Rights.

Fourth Amendment Challenge to the Duration of the Seizure of House's Devices
House argues that even if the initial search was not a Fourth Amendment violation, the prolonged detention of the devices was. Citing United States v. Cotterman, the court notes that the "[g]overnment cannot simply seize property under its border search power and hold it for weeks, months, or years on a whim." The Defendants argue that the extended retention was justified under the circumstances, because House did not provide his laptop's password, his laptop was running an unfamiliar operating system, and there was a limited number of available agents to review House's devices. In disputing this argument, House brought in Alexander Stamos, a forensic investigator, who declared that the forty-nine days is an unreasonable time for the ICE to review and investigate House's computer. Based on the process described by ICE to review House's devices, Stamos attested that the entire procedure should not have taken more than eighteen hours. The court concluded that House has a plausible Fourth Amendment defense in the government's prolonged detention of his devices, and accordingly denied the Defendant's motion to dismiss House's Fourth Amendment claims.

First Amendment Challenge to the Search and Seizure
The First Amendment to the United States Constitution provides that "Congress shall make no law...abridging the freedom of speech...or the right of the people peaceably to assemble." House claimed that the search, seizure, retention, and dissemination of information on his devices regarding the Manning Support Network violated his right of association under the First Amendment. While a search by itself does not necessarily violate the First Amendment, House alleged that the search specifically targeted House's association with the Manning Support Network and WikiLeaks. House claimed that the agents stopped him at the border because of his association with Manning, because the agents questioned him only after seizing his devices, and their questions were solely to do with House's relations to Manning, the Manning Support Network, and WikiLeaks, and nothing to do with border control, customs, terrorism, or illegal activity.

The Defendants claimed that the agents incidentally stumbled upon the information about Manning while conducting a valid border search, which is not a violation of the First Amendment, citing U.S. v. Arnold and U.S. v. Ickes. However, the court observed that in both cases, the content of the laptop was inspected and seized only after expressive material was discovered, whereas in this case, House's devices were seized before he was even questioned. The court stated that the government cannot target someone because of their political associations and seize, review, and disseminate information specifically regarding the associations simply because the initial search occurred at the border. Citing Fighting Finest, Inc. v. Bratton and Lyng v. Int'l Union, the court noted that a government action that affects an individual's right of association can be considered a violation of the First Amendment if it is direct and substantial. In this case, the court concluded that House has provided sufficient facts for a plausible First Amendment defense, and denied the Defendant's motion to dismiss House's First Amendment claims.

Judgment
For the reasons stated above, the Defendant's motion to dismiss House's claims was denied.

House's Request for Injunctive Relief
House additionally requested injunctive relief, requiring the Defendants to reveal all recipients of the information copied from House's computer, and to either return or destroy all of the information. The Defendants claimed that even if House is successful on his claims, he is not entitled to request such an action. The court concluded that at this stage of the proceedings, it does not have all of the facts necessary to assess the circumstances and determine the validity of House's request.

Settlement
After several months of negotiations following this case, The government reached a settlement with House, agreeing to disclose numerous documents regarding the search, seizure, and investigation of House's devices, and destroy all information obtained from them. House did not request any monetary relief, only that confidential information concerning the Manning Support Network did not remain in government hands.