US Fed judge: it might be unconstitutional to go fishing through your hard-drive at the border just because you support Bradley Manning

A rare moment of sanity from the US courts relating to Bradley Manning: David Maurice House, an MIT researcher and high profile supporter of Manning has been given the go-ahead to sue the US government for punitively searching his stuff when he came back to the USA after a holiday in Mexico.

“Although the agents may not need to have any particularized suspicion for the initial search and seizure at the border for the purpose of the Fourth Amendment analysis, it does not necessarily follow that the agents, as is alleged in the complaint, may seize personal electronic devices containing expressive materials, 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,” U.S. District Court Judge Denise Casper wrote.


Politically Motivated Border Searches Could Be Unconstitutional, Judge Rules ( Zetter)


  1. I wonder what kind of treatment Bruce Schnier can expect from TSA and Customs from now on.

    (Assuming he doesn’t just decide to pass invisibly through their security measures, that is)

    1. I suspect that only a real moron would hassle Schnier. He is fairly high profile and his job is being a public figure on security-related stuff. Anything short of disappearing him to a black site would(while certainly being inconvenient) likely just end up as publicity material for him and nontrivial risk of public exposure for you.

  2. Ok, I am not being fussy here, and I am only writing this because of my deep an abiding love of Boinboing, but it really might be helpful to have an attorney look at these things who can give your readers perspective on what is actually happening. The way you characterized this document is just really really wrong.
    This is not a go-ahead to sue, but rather a denial of a motion to dismiss. What this means is that the plaintiff sued the government, then the government said to the court “you should throw this case out, because even if what the plaintiff said is all true, and even when viewing those facts in the light most favorable to the plaintiff, the facts still do not support the plaintiff’s claims”. The court then examines the plaintiff’s claim, and if the plaintiff has shown that is has ‘a plausible entitlement to relief’ (in the words of the 1st circuit) then the motion to dismiss is denied, and the case proceeds to trial. The bar is actually fairly low, all the plaintiff has to show is that there are any “issues of material fact” (sort of a legal term of art, but probably pretty easy to understand) and the case will move forward. This is definitely a win for the plaintiff, and I don’t want to say it is not a big deal, because it definitely increases the settlement value of a case (a concern which probably doesn’t apply as much to the Federal Government) and will potentially lead to an interesting ruling and publicity for the matter; but yea, not a super huge deal, or a big surprise when reading the facts.  Whatever the denial of the motion might be, and whatever opinion one might have of  the court of the District of Massachusetts; I think characterizing it as a “rare moment of sanity” is just kind of goofy and wrong.

    1. And . . . I’m 99.9% sure he’s going to lose on the merits. The border is the border and the Supreme Court has been pretty clear about that.

      1. Read the ruling. The judge made it very clear the border is the border, but that the border exception is related to the Fourth, not First Amendment. It’s actually a very well thought-out ruling.

      2. You are correct. The ruling is 27 pages. One thing that stuck out when I saw this comment and the parent comment was “In the Ninth Circuit’s decision in Arnold, the court concluded that customs officials did not need reasonable suspicion to search a laptop or other personal electronic storage devices at the border.”

  3.  Things brings to mind two related points.

    1) With today’s Internet, it’s a stupid waste of time to search a computer at the border for data that’s almost surely stored in the cloud or on a server.

    2) With today’s Internet, it’s a stupid idea to cross a border with incriminating data that could be easily stored in the cloud or on a server.

    1. That may be so, but I support the right not to rearrange one’s life (and data) just to avoid the actions of a ‘democratic’ government.

      1.  I couldn’t agree more. And as per item 1 in my list, I can only conclude that harassment is the only reason to search someone’s computer at the border.

    2.  The worst part is that neither the court nor the Congress seem to have clued into the hypocrisy of requiring a warrant to search electronic communications crossing the border over a fiber optic cable but not even requiring reasonable suspicion to examine the exact same communicate if it crosses the border on a hard drive. Prima Facie evidence that the people making the rules don’t understand the century they are living in.

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