U.S. Finds a Way around Warrants ; at the Border, Agents Subvert Rules against Searches and Seizures

Article excerpt

Newly released documents detail a process that enables the government to detain a person, who may not be a suspect in an investigation, and confiscate any electronic devices that person is carrying.

Newly released documents disclose how the U.S. government uses border crossings to seize travelers' electronic devices instead of obtaining search warrants to gain access to the data.

The documents detail what until now has been a largely secretive process that enables the government to create a travel alert for a person who may not be a suspect in an investigation, then detain that individual at a border crossing and confiscate electronic devices.

To critics, the documents show how the government can subvert Americans' constitutional protections against unreasonable search and seizure, but the confiscations have largely been allowed by courts as a tool to battle illegal activities like drug smuggling.

The documents, part of a legal settlement with the Department of Homeland Security, were turned over to David House, a fund-raiser for the legal defense of Chelsea Manning, formerly known as Pfc. Bradley Manning, who was sentenced by a military judge last month to 35 years in prison for providing more than 700,000 government files to WikiLeaks. Mr. House sued the agency after his laptop, camera, thumb drive and cellphone were seized when he returned from a trip to Mexico in November 2010. The data from the devices was then examined over seven months.

Although government investigators had questioned Mr. House about his association with Private Manning in the months before his trip to Mexico, he said no one had asked to search his computer or mentioned seeking a warrant to do so. After seizing his devices, the immigration authorities sent a copy of Mr. House's data to the U.S. Army Criminal Investigation Command, which conducted the detailed search of his files. No evidence of any crime was found, the documents say.

"Americans crossing the border are being searched and their digital media is being seized in the hopes that the government will find something to have them convicted," Mr. House said. "I think it's important for business travelers and people who consider themselves politically inclined to know what dangers they now face in a country where they have no real guarantee of privacy at the border."

A spokeswoman for U.S. Customs and Border Protection said the agency declined to comment about the settlement with Mr. House or answer questions about travelers' rights when devices are seized during a border crossing.

While many travelers have no idea why they are singled out for a more intrusive screening at a border, one of the documents released in Mr. House's settlement shows that he was flagged for a device search months before he traveled to Mexico.

On July 8, 2010, U.S. Immigration and Customs Enforcement investigators in New York created an alert, known as a TECS lookout, for Mr. House, noting that he was "wanted for questioning re leak of classified material" and ordering border agents to "secure digital media" if he appeared at an inspection point.

TECS is a computer system used to screen travelers at the border, and includes records from law enforcement, immigration and anti- terrorism databases. A report from the Department of Homeland Security about border searches of electronic devices says a traveler may be searched "because he is the subject of, or person-of- interest-in, an ongoing law enforcement investigation and was flagged by a law enforcement 'lookout"' in the Immigration and Customs Enforcement computer system.

On Oct. 26, 2010, an automated message notified investigators that Mr. House had an airline reservation on Oct. 30, traveling on American Airlines Flight 865 from Dallas-Fort Worth to Los Cabos, Mexico; a later query noted that he would be returning to Chicago O'Hare on American Flight 228, landing at 6 p.m. on Nov. 3.

As airline passengers are required to provide carriers with their birth dates and passport numbers before flights to or from the United States, and airlines pass that information to Homeland Security as part of the Advance Passenger Information System, computers matched the lookout alert with Mr. …