In response to a Freedom of Information Act (FOIA) suit brought to the courts by the Electronic Frontier Foundation (EFF), the U.S. Department of Justice has released hundreds of pages of FISA court rulings, and the stories they hold have already begun to be told.
The American Civil Liberties Union (ACLU) are not exactly slouches in that area either. In a FOIA suit on behalf of the Private Manning Support Network’s David House, the ACLU has unearthed apparent abuse of border laws and civil rights in the zeal to pursue the case against WikiLeaks whistleblower Chelsea Manning.
House was stopped at Chicago’s O’Hare Airport on his return from a vacation in Mexico due to a nationwide alert entered into the Department of Homeland Security database by U.S. customs agent. As the ACLU stated on its blog, “DHS agents detained House, interrogated him about his political activities and beliefs, and then seized his laptop computer, mobile phone, camera, and USB drive. The agents returned House’s phone after inspecting it, but the government kept the rest of his devices for seven weeks while agents searched his files for evidence. Even after the government returned House’s physical devices, it continued to actively investigate copies of his files for nearly six more months.”
None of this was due to suspected crimes or terrorist activities, but rather to his clearly legal support for Manning.
The group sued DHS and Immigration and Customs Enforcement (ICE), asserting House’s First and Fourth Amendment rights were violated in the seizure and retention of his personal documents and electronic devices.
The judge in the case ruled that, although the DHS, in order to pursue terrorists and guard national security, is legally entitled to carry out its activities in certain circumstances without needing to prove reasonable suspicion or secure a warrant. But the judge also ruled that these powers are not unlimited and that DHS’s politically-motivated actions violated House's First Amendment rights.
In an agreement, DHS agreed to destroy the data it gathered from its search of House's electronics and release documents related to the search.
Among the revelations from those documents:
“The settlement documents reveal that an agent with Homeland Security Investigations (HSI)—an Immigration and Customs Enforcement (ICE) subdivision that is now the second largest law enforcement agency in the United States—entered a “lookout” into a government database called TECS (see the document here), effectively notifying government agents throughout the country that House was wanted for questioning in connection with the Department of Justice’s investigation into Manning and WikiLeaks. As a result of the lookout, which was linked to the Advance Passenger Information System, HSI later received an automated notification that House would be traveling outside the country and that he would return through O’Hare on November 3, 2010.”
Additionally, the DHS and ICE agents broke their own rules by not completing the device searches within 30 days.
As the ACLU points out, federal agents perform about 5,000 electronic device searches per year. As TechDirt’s Tim Cushing notes, “with the vague definition of ‘border’ including a 100-mile band around the country and any other inland entry point where someone might return from a foreign country, the power remains almost limitless and completely unrelated to keeping our borders secure.”
Edward Snowden’s ongoing revelations about NSA surveillance have inspired a strong public reaction against the anything-for-the-sake-of-national-security position the U.S. government has taken since this day a dozen years ago. This continuing release of those documents, along with successful prosecution of FOIA suits by groups such as the ACLU and the EFF, may eventually produce outrage fatigue.
But that time has yet to come. As more and more information about how the American intelligence community has overstepped reasonable bounds in the pursuit of national security comes to light and as avenues to that information proliferate, we can anticipate more stories like these.