BOB GARFIELD: As previously discussed on this program, there has long been a quiet exception to the constitutional protection against warrantless search and seizure. It happens routinely at every US border, where federal agents are free to confiscate and copy contents of hard drives, cell phones and other electronic equipment. This week New York Times contributor Susan Stellin broke a story that affords us new insights into how the US government exploits the loophole to target journalists, activists and who knows who else.
That insight came from documents handed over by the government as part of a settlement with David House, a fundraiser for the legal defense of Chelsea Manning.
SUSAN STELLIN: David House was returning from a trip to Mexico in late 2010 and was stopped when he was reentering the US. He was pulled aside for what’s known as a secondary inspection, where you can be questioned further if there's something that comes up in your file. They seized and copied his electronic devices that he was carrying. So what came out recently was that he’d been targeted for this search. What was called a text lookout had been created for him months prior to that, basically saying, we’re keepin’ an eye out for this guy. When he comes to the border, stop him, do a search and seize his electronic media.
BOB GARFIELD: Had they had they probable cause to persuade a judge that House was a legitimate target of a criminal investigation, they could have just gotten a warrant and obtained the material, copied it and, and investigated. But they didn’t have that, so they just bided their time for him to leave the country and then have to reenter?
SUSAN STELLIN: Yes. The lookout was created in July. He didn't travel until October, leaving the country and then returned on November 11th. But anytime you make on airline reservation, particularly to leave the country, you have to enter your passport number – you know, date of birth, gender, etc. So in the computer systems that are all running in the background, when that reservation was booked that was matched to the lookout which included David’s passport number.
BOB GARFIELD: Do you have any idea whether the feds found anything in House’s data that was in any way incriminating?
SUSAN STELLIN: No. I mean, in fact, one of the documents reveals that absolutely no evidence was found that constituted evidence of a crime. And this was after they kept copies of his devices and searched through the data for seven months. What you're talking about here is not just the kind of cursory search that some people experience at the border, where they’re asked, you know, can you turn on your laptop or can you show me the photos on the camera that you’re carrying with you, or, you know, a sort of casual look at someone’s phone, which still are searches that bother a lot of people.
But in this case, this was considered what's known as a forensic examination because they were using more advanced software to break the encryption and, you know, look for things like deleted files.
BOB GARFIELD: What is the legal justification, the rationale behind having a different search and seizure standard at the border than law enforcement agencies have to deal with domestically?
SUSAN STELLIN: Basically, the courts have sort of viewed it as the government has the right to deter criminals from entering with contraband. You know, that might be drugs or child pornography or overt terrorism. So they’re generally given pretty broad latitude to search people and their bags at the border.
The problem is the law doesn’t really catch up to technology. So that was one thing when people might have had some document, you know, in a briefcase or something like that, but now people travel with smart phones and laptops and cameras and thumb drives that have basically their entire life on it. And, you know, the government has asserted that, yes, we still have the right to not only look at this but copy it and really examine it. That sometimes can take months, as it did in David's case.
BOB GARFIELD: Now, this is particularly concerning because it’s not just a case of federal border agents profiling potential purveyors of child pornography or the tools of terrorism, but explicitly using the border loophole as an end run against basic Fourth and First Amendment protections. House had a legal settlement. Has his case had any bearing on potential further judicial rulings?
SUSAN STELLIN: Well, it’s not a binding ruling, so it doesn't necessarily apply to any further legal decisions. But the government agreed to settle with him and made this offer to destroy the data that they’d copied, return the data to him. And, of course, he also obtained the documents that revealed a lot about, you know, how these targeted lookouts happen and also what happens to a device after it’s confiscated by the government.
BOB GARFIELD: There is another case brewing. Who is Pascal Abidor?
SUSAN STELLIN: He's a graduate student in Islamic Studies, who was returning to the US on an Amtrak train from Canada. He was pulled aside for a secondary search. He was actually interrogated and put in a cell, had his laptop taken and kept for 11 days, and presumably copied. That’s a case that kind of is a different example of profiling, and once they saw some of the materials on his computer and the research that he'd been doing, felt like this is someone who warranted further investigation. It can be unpleasant. It's not necessarily clear what your rights are. People are in the situation, you know, sometime in a room by themselves, and it can be really frightening.
BOB GARFIELD: And, just to clarify, Pascal Abidor, American citizen?
SUSAN STELLIN: Yes.
BOB GARFIELD: David House, American citizen.
BOB GARFIELD: Susan, thank you.
SUSAN STELLIN: Thank you.
BOB GARFIELD: Susan Stellin is a contributor to the New York Times. As Stellin observed, it’s not really clear what your rights are at the border, technology related or otherwise. OTM has asked the Department of Homeland Security for some answers about its policies and its tactics. We expect to have a report on next week's show.