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Judge Allows Bradley Manning Supporter To Sue Government Over Border Search 129

Posted by samzenpus
from the sticking-it-to-the-man dept.
Fluffeh writes "David Maurice House, an MIT researcher and Bradley Manning supporter, was granted the right to pursue a case against the government on Wednesday after a federal judge denied the government's motion to dismiss. 'This ruling affirms that the Constitution is still alive at the US border,' ACLU Staff Attorney Catherine Crump said in a statement. 'Despite the government's broad assertions that it can take and search any laptop, diary or smartphone without any reasonable suspicion, the court said the government cannot use that power to target political speech.' The agents confiscated a laptop computer, a thumb drive, and a digital camera from House and reportedly demanded, but did not receive, his encryption keys. DHS held onto House's equipment for 49 days and returned it only after the ACLU sent a strongly worded letter."
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Judge Allows Bradley Manning Supporter To Sue Government Over Border Search

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  • by Anonymous Coward on Thursday March 29, 2012 @10:05PM (#39518449)

    I'm surprised that he wasn't being held in contempt.. or similar.. for not handing over his keys..

  • Inconsistent? (Score:5, Interesting)

    by DoofusOfDeath (636671) on Thursday March 29, 2012 @10:07PM (#39518461)

    If they can't violate the 1st Amendment, then why can they violate the 4th?

    Is this just setting up a contradiction that will land in the Supreme Court?

    • by IBitOBear (410965) on Thursday March 29, 2012 @10:29PM (#39518625) Homepage Journal

      Violating the First Amendment is a violation of Apparent Freedom(tm) and is part of Political Theater(tm).

      Violating the Fourth Amendment is a violation of Apparent Secrecy(tmp and is part of Security Theater(tm).

      The DHS, in its puppet role over the TSA is in charge of Security Theater(tm) and so had no leg to stand on against the First Amendment.

      If proper form were followed, the DHS would have picked a fight with House in a public place away from the border but within view of a political edifice, and "accidentally damaged" the material seized, then claimed it was known to contain child pornogrpahy because someone saw it over House's shoulder.

      In short, this was all a failure of Due Process, as they used the entirely incorrect Rail Road in its persuit.

      It'll be fixed in post production before air... just you wait...

      • by koan (80826)

        You lost me at "persuit".

        • by IBitOBear (410965) on Thursday March 29, 2012 @11:10PM (#39518937) Homepage Journal

          Railroading someone in pursuit of "Justice(tm)" has become commonplace in this country. Each form of railroading has its very onw pro-forma means and mode of operation. In drugs offenses, for instance, they get to weigh the packaging as part of the drug and assign "street value" that corresponds to no known street in order to lay on extra charges etc. In this case they used border seizure on a politically undersireable person. This was not the correct means or venue. e.g. "they picked the wrong railroad" to go after this guy. (the e instad of u was just a typo.)

          • by SuricouRaven (1897204) on Friday March 30, 2012 @02:14AM (#39519603)
            Long been commonplace. It's standard practice in computer crime to count the cost of securing the computers as damages - that's how a hacker (Or more often, script kiddie with luck) can break into a system, do nothing, leave, and still do enough 'damage' to make it a felony.
            • by glop (181086)

              That's really an intriguing interpretation of the economics at play. It makes you wonder why anybody would ever pay for penetration testing or audits of any kind...

              • because not all hackers get caught, and a hacked network can cost your company much more money than the cost of paying someone to secure it.

    • Re: (Score:2, Funny)

      by Anonymous Coward

      Amendments are obviously written in order of importance. Border searches are more important than the 4th amendment but less than the 1st. I think that it in fact lies somewhere between the 2nd and 3rd amendments in terms of importance.

    • Re:Inconsistent? (Score:5, Informative)

      by PatPending (953482) on Thursday March 29, 2012 @10:35PM (#39518677)
      Oh, for goodness sake, RTFA:

      Under the "border search exception" of United States criminal law, international travelers can be searched without a warrant as they enter the U.S. Under the Barack Obama administration, law enforcement agents have aggressively used this power to search travelers' laptops, sometimes copying the hard drive before returning the computer to its owner. Courts have ruled that such laptop searches can take place even in the absence of any reasonable suspicion of wrongdoing.

      • Re:Inconsistent? (Score:5, Interesting)

        by EdIII (1114411) on Friday March 30, 2012 @12:25AM (#39519219)

        Which is why if I travel international from now on I remove my hard drives and replace them with a sanitized factory OS that only contains pictures of kittens and puppies. Anything really important can be retrieved over a VPN and then decrypted. Coming back into the US I have the hard drives removed and shipped before hand. Fuck em.

        Of course that is a temporary measure and most likely useless when the DHS greatly expands its role to bus stops, truck weighing stations, interior border checkpoints, and the friendly mall nearest you.....

        Eventually they will solve unemployment by making some barely educated moron, who graduated their fast track "degree in the security arts", pat me down entering and leaving my house.

        • by Anonymous Coward

          don't forget freeway rest areas, the most likely
          hangout for the DHS and TSA

          jr

        • by jythie (914043)
          Careful, they might sieze your machine for having kitty porn on it then, which they would then claim with a strait face was 'technically true'.
          • by Coren22 (1625475)

            Isn't the definition of porn that it is sexual in nature? Perhaps if the kittens were in the process of being raped by older cats?

      • by Anonymous Coward

        Oh, for goodness sake, RTFA:

        The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized, except outside U.S. borders or when the Congress decides to set up departments to do otherwise.

      • Re:Inconsistent? (Score:5, Insightful)

        by Loki_666 (824073) on Friday March 30, 2012 @01:21AM (#39519445)

        Wait a minute! Doesn't this mean if they copy the contents then they may be pirating software, films, and music? .

        • by stealth_finger (1809752) on Friday March 30, 2012 @05:18AM (#39520397)

          Wait a minute! Doesn't this mean if they copy the contents then they may be pirating software, films, and music? .

          Someone call the RIAA, maybe these two behemoths can bludgeon each other to death over a long drawn out battle and leave the rest of us the fuck alone for a while.

      • by jcr (53032)

        Under the "border search exception" of United States criminal law,

        Which does not trump the constitution. I'm very glad to see someone litigating this issue.

        -jcr

    • by koan (80826)

      The same supreme court that allowed the creation of super PAC's or "corporations are people"?

    • Re:Inconsistent? (Score:5, Informative)

      by the eric conspiracy (20178) on Thursday March 29, 2012 @10:53PM (#39518801)

      Warrantless, causeless border searches of closed containers by customs agents have been permissible since the beginning of the Republic under an act passed by the First Congress on July 31, 1787, merely 4 weeks after the ratification.

      What makes this act constitutional is the power granted to Congress under the Constitution to regulate commerce between nations and enforce immigration laws.

      It is VERY unlikely that the Supreme Court will touch this principle that has been in force for 230 years.

      • Re:Inconsistent? (Score:5, Insightful)

        by grcumb (781340) on Thursday March 29, 2012 @11:48PM (#39519075) Homepage Journal

        What makes this act constitutional is the power granted to Congress under the Constitution to regulate commerce between nations and enforce immigration laws.

        It is VERY unlikely that the Supreme Court will touch this principle that has been in force for 230 years.

        And what would make it UN-constitutional is if the search and seizure were done to silence domestic political opposition. Which is why the judge is allowing the case to proceed.

        • He was answering the original question. Searches at the border don't violate the 4th amendment. It doesn't say "no searches" or anything like that, it say there can't be any "unreasonable searches".

          What is reasonable varies with the situation. For your home, it is pretty high. A warrant is required in almost all cases. For the border, it is pretty low. The SC has decided there is no expectation of privacy there, that the government has a right to secure its borders, and so on and as such they don't even nee

        • Which would be a violation of the FIRST Amendment, not the FOURTH, which is what we were discussing.

    • Re:Inconsistent? (Score:5, Insightful)

      by pdabbadabba (720526) on Thursday March 29, 2012 @11:09PM (#39518925) Homepage

      First remember that the 4th Amendment does not actually require a warrant before the government can search your property. It just requires that searches be "reasonable." It's just that in most cases the courts have held that reasonableness requires a warrant. Not so, they have said, at the border where travelers expect that they might be searched and where the government has a heightened interest in controlling what moves in and out of the country. Imagine trying to enforce customs regulations without an ability to search! (Note that I don't agree with all of the powers that the government claims flow from this, but this should help to explain why at least some of what they do is OK under the 4th Amendment.)

      But the government can't enforce its laws in a way that infringe on other rights. So, for example, the police can't decide to only pull over black people for speeding, even if they were actually speeding. Or, here, the government can't decide to only seize the property of people who belong to the wrong organizations (such as the Bradley Manning Support Network). That would violate the 1st Amendment just as pulling over only black people for speeding would violate the 14th.

      • IIRC, the 4th amendment came from the Stamp Act. Under the Stamp Act, British law allowed for soldiers to essentially write their own search warrants. Naturally, the colonists weren't too happy about this and thus the intent of the ratifiers of the 4th amendment is that to search private property a search warrant must be issued.
      • Re:Inconsistent? (Score:5, Insightful)

        by Bob9113 (14996) on Friday March 30, 2012 @03:16AM (#39519857) Homepage

        Imagine trying to enforce customs regulations without an ability to search!

        Without the ability to search laptop hard drives? OK, I'll try to imagine that... Done. In fact, it was really easy. Here's how it goes:

        You search things like trailers and trunks that carry physical things. Physical things that cannot cross the border via the Internet. Then, you don't search the hard drives, because they are not particularly useful for transporting Cuban cigars or Persian rugs.

        Hard drives are only good for transporting data, which can travel just as easily through the Internet, or on a micro SD card that the border agents would not be able to find without stripping the vehicle to component parts. The increased probability of catching even a moderately intelligent data trafficker by checking laptop hard drives is vanishingly small, and utterly insufficient to be reasonable cause for avoiding a fourth amendment violation.

        Which is to say; customs enforcement is not remotely credible as the actual, underlying justification for searching a hard drive.

        Therefore, the objective of the executive in doing such searches must be something other than customs enforcement. Those objectives may be fine and wonderful things, but they are not directly related to crossing the border. The border crossing is the distinguishing event; the proximate source of reasonableness that prevents a violation of the fourth from a warrantless search. If the infraction in question is not directly related to the crossing of the border, the crossing of the border cannot be the means to satisfy the reasonableness requirement in a rational society.

        • I agree! That's why I said "Note that I don't agree with all of the powers that the government claims flow from this." I think that the legality of seizing hard drives is a closer call than most /.ers do, but I ultimately agree that it's unconstitutional. I think it's usually more helpful, though, for me to make the legal case against the /. conventional wisdom when I can than to just report my own opinion. (And, honestly, the /.ers are often so confidently smug in their completely incorrect legal opinions

          • by Bob9113 (14996)

            I think it's usually more helpful, though, for me to make the legal case against the /. conventional wisdom when I can than to just report my own opinion.

            I dig what you're saying, but the problem is the logic still is not there. If you're just saying, "This is what they argue", fine. I'm just saying, "This is why they are wrong."

            Doesn't matter who says it is right, from a lackluster legal clerk with poor judgment to the SCOTUS, what they say is not necessarily what is right. Lots of case law and legal opini

      • First remember that the 4th Amendment does not actually require a warrant before the government can search your property. It just requires that searches be "reasonable."

        That is the common interpretation, but (IMHO) it's based on a misreading of the text.

        A "warrant" is nothing more or less than permission to do something which would normally be illegal. In this case, to perform a search, which involves violating the owner's property rights. Without a warrant, one has, by definition, no permission to do anything which a normal private citizen couldn't do. Given that, the 4th amendment is clearly saying that "reasonable" warrants (and thus involuntary searches) are defined as

    • The entire idea of amendments is flawed. The people have forgotten obviously that the Federal government only exists as an agreement among States (ratification is signing a contract), and the Constitution enumerates the powers of the federal government. But this means that the governments has no powers except for those that are listed in Article 1, section 8, however amendments cloud this issue for the crowd (supposedly not for judges and politicians, right?) and the crowd believes that the government is

  • I'm hoping (Score:5, Funny)

    by Lucky_Pierre (175635) on Thursday March 29, 2012 @10:21PM (#39518563)

    For change.

  • Police State (Score:5, Insightful)

    by Anonymous Coward on Thursday March 29, 2012 @10:22PM (#39518569)

    This country was founded (in part) to protect people from the very shenanigans going on now re: unlawful search and seizure. Most of this crap is being justified under the umbrella of the "war on terror." The current occupant was elected by in large to combat the Bush era Patriot Act and the wars in Iraq and Afghanistan. Perhaps we have met the enemy.

    • Re: (Score:3, Insightful)

      by Anonymous Coward
      We have met the enemy, and he is us. We're the ones who assumed BHO would be different from GWB.
      • Re:Police State (Score:4, Insightful)

        by jcr (53032) <jcr@mac. c o m> on Friday March 30, 2012 @02:14AM (#39519601) Journal

        We're the ones who assumed BHO would be different from GWB.

        Speak for yourself. It was obvious to a lot of people that the teleprompter-in-chief was a wholly-owned minion of Goldman Sachs before he even set foot in the Senate chamber for the first time.

        -jcr

    • by koan (80826)

      Besides pointing out the obvious as an AC on /. what do you intend to do about it?

  • by PatPending (953482) on Thursday March 29, 2012 @10:29PM (#39518623)
    Anyone have a link to (or copy of) the ACLU's "strongly worded letter" to the TSA? Its contents might prove useful to others in a similar situation.
  • Look Out! (Score:5, Funny)

    by exomondo (1725132) on Thursday March 29, 2012 @10:30PM (#39518629)
    He's got a strongly worded letter!
  • Why is it that our asinine politicians in both parties have no respect for the Constitution anymore? I thought at least this crap would get better under Obama. Instead it has only gotten worse...
    • by Anonymous Coward

      because the average american hates the constitution and any time you say we should follow it people call you a "fucking libertarian" or a paultard... and they wonder why they live in a police state...

    • No, not that much changed is the problem; even that part about killing US citizen terrorists was claimed to be already possible from a previous law (which expired or wasn't explicit enough to satisfy John McCain; i forget which but the OTHER candidate wrote the bill... and I think a veto wouldn't have stopped it anyhow, which they knew wasn't going to happen before they voted.)

      It is that no ass kissing politician (does anybody vote for anything else?) has the guts to stop something that they KNOW will be us

      • by ppanon (16583)
        To be fair, it would be the Senate that would need to have the guts to impeach Obama since impeachment of the President is a Senatorial responsibility.
    • by alexo (9335)

      Why is it that our asinine politicians in both parties have no respect for the Constitution anymore?

      Because violating it carries no personal consequences.

      Equate constitutional violations to treason and you'll see how fast things change.

  • by rust627 (1072296) on Thursday March 29, 2012 @11:04PM (#39518877)

    Yes We Can !

    • by game kid (805301)

      That's Barack O'Bob the Builder for ya.

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