Case 1:11-cv-10852-DJC Document 1 Filed 05/13/11 Page 1 of 10

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

DAVID HOUSE,

)

)

Plaintiff,

)

)

v.

)

)

JANET NAPOLITANO, in her official capacity as

)

Secretary of the U.S. Department of Homeland

)

Security; ALAN BERSIN, in his official capacity as

)

Commissioner, U.S. Customs and Border Protection;

)

JOHN T. MORTON, in his official capacity as Director, )

U.S. Immigration and Customs Enforcement,

)

)

Defendants.

)

COMPLAINT
NATURE OF THE ACTION 1. This is an action for declaratory and injunctive relief against officials of the Department of Homeland Security and its components, Customs and Border Protection and Immigration and Customs Enforcement. Plaintiff challenges as a violation of the First and Fourth Amendments the prolonged seizure of his laptop computer and other electronic devices and the review, copying, retention, and dissemination of their contents. Plaintiff also alleges that the materials seized by the government contain confidential information identifying members and supporters of a political organization, the Bradley Manning Support Network, and that Defendants’ review, retention, and disclosure of that information intrudes on the right of associational privacy protected by the First Amendment. Plaintiff seeks a declaratory judgment that the search and seizure violated the First and Fourth Amendments, and an injunction requiring Defendants to return or destroy any seized data in their custody or control and to inform Plaintiff whether that data has been disclosed to other agencies or individuals.

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JURISDICTION AND VENUE 2. This case arises under the Constitution of the United States and presents a federal question within this Court’s jurisdiction under 28 U.S.C. § 1331. 3. The Court has authority to issue declaratory and injunctive relief under 28 U.S.C. §§ 2201 and 2202, Rules 57 and 65 of the Federal Rules of Civil Procedure, and its inherent equitable powers. 4. Venue is proper in this district under 28 U.S.C. § 1391(e)(3) because Plaintiff resides in this district.
PARTIES 5. Plaintiff David House is a citizen of the United States and a resident of Cambridge, Massachusetts. 6. Defendant Janet Napolitano is the Secretary of the Department of Homeland Security (“DHS”). Customs and Border Protection (“CBP”) and Immigration and Customs Enforcement (“ICE”) are agencies of the U.S. government within DHS. As head of DHS, Secretary Napolitano has authority over all DHS policies, procedures, and practices related to border searches. Defendant Napolitano is sued in her official capacity. 7. Defendant Alan Bersin is Commissioner of CBP, and as such has authority over all CBP policies, procedures, and practices related to border searches. Defendant Bersin is sued in his official capacity. 8. Defendant John T. Morton is the Director of ICE, and as such has authority over all ICE policies, procedures, and practices relating to border searches. Defendant Morton is sued in his official capacity.
FACTUAL ALLEGATIONS The Formation of the Bradley Manning Support Network and the Targeting of David House by the United States Government
9. In May 2010, Bradley Manning, a U.S. serviceman deployed in Iraq, was arrested on suspicion of having disclosed restricted material to the organization WikiLeaks. In July 2010, he was formally charged with accessing and disclosing without authorization classified information,
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including “a classified video of a military operation,” and fifty Department of State cables. Further charges were brought against him in March 2011, including a charge that he knowingly gave intelligence to the enemy, a capital offense. Following his arrest, Manning was moved to a military detention facility in Quantico, Virginia where he was held in solitary confinement under conditions that have been widely criticized as degrading and humiliating. In April 2011, Manning was transferred to a maximum security facility at Ft. Leavenworth, Kansas.
10. Manning’s arrest followed the April 2010 publication by WikiLeaks of a video titled “Collateral Murder,” a recording of a 2007 air attack by U.S. forces in Baghdad in which Iraqi civilians, including two Reuters employees, were killed. WikiLeaks is an organization that provides both a channel and a platform for the public disclosure of information obtained from anonymous sources. Beginning in 2006, WikiLeaks has made available information about the activities of both U.S. and foreign governments and private organizations which are of interest to the public, including documentation of corruption and official misconduct and records of undisclosed government policy. In July 2010, WikiLeaks released a compilation of nearly 77,000 previously unavailable documents about the war in Afghanistan. In October 2010, in coordination with major international media organizations including The New York Times and The Guardian, the group released a collection of almost 400,000 government documents concerning the Iraq war. In November 2010, WikiLeaks, again working in collaboration with major international media organizations, released an additional collection of State Department cables. Rather than release all 251,287 cables it had obtained, WikiLeaks shared them with major international media organizations, and then placed a few hundred documents on its website.
11. The alleged disclosure of government records by Manning and the suspected connection between Manning and WikiLeaks are the subject of criminal investigations by civilian and military authorities. The Department of Defense has acknowledged that the investigation of Manning by the U.S. Army Criminal Investigation Command is ongoing. The disclosure of classified information is also the subject of an ongoing inquiry by the Department of Justice and a federal grand jury sitting in the Eastern District of Virginia.
12. Plaintiff David House is a computer programmer and researcher who resides in Cambridge, Massachusetts. Following Manning’s arrest, Plaintiff and others joined together in
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June 2010 to establish the Bradley Manning Support Network (“Support Network”). The Support Network is an unincorporated association of individuals and organizations which describes itself as an “international grassroots effort to help accused whistle blower Pfc. Bradley Manning.” To that end, its stated purposes include: harnessing the outrage of viewers of the “Collateral Murder” video into a coordinated effort in defense of Manning; coordinating international support for Manning; raising funds for Manning’s legal defense; and providing support for Manning during his imprisonment. These objectives are pursued through the Support Network’s website and internet presence, through organizing public events, and through private contacts with individuals. The Support Network is not affiliated with WikiLeaks.
13. In addition to his role as a founding member of the Support Network, Plaintiff developed the organization’s website. He currently serves on the Support Network’s Steering Committee, is active in its work, and regularly communicates with others who are concerned about Manning’s treatment and prosecution. He has also served as one of the organization’s primary fundraisers and, in that capacity, has been responsible for meeting potential supporters and soliciting donations to Manning’s legal defense.
14. Although the work of the Support Network and Plaintiff’s part in that work consist solely of lawful and constitutionally-protected advocacy and associational activity, Plaintiff has been targeted for surveillance and investigation by various agencies of the U.S. government. Following the formation of the Support Network, Plaintiff has been visited and questioned, both at his home and place of work in Cambridge, by investigators for the U.S. Department of Defense, the Department of State, and the Federal Bureau of Investigation. Plaintiff has been placed on a watch list which has resulted in his being stopped for questioning and searched each time that he enters the United States following foreign travel. Beginning in September 2010, Plaintiff has been detained for questioning at the border on each of seven occasions he has reentered the United States after foreign travel and is routinely questioned on those occasions about his work with the Support Network or his political beliefs and activities.
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The November 3, 2010 Seizure of Plaintiff’s Electronic Devices
15. On November 3, 2010, following a vacation in Mexico, Plaintiff arrived at Chicago’s O’Hare International Airport where he was to take a connecting flight to Boston. He was carrying his laptop computer, a USB storage device, a video camera containing a memory storage device, and a cellular phone. Upon arrival, Plaintiff passed through a passport control station, collected his baggage, and proceeded to customs, where a CBP officer advised him that his belongings would be searched. The officer examined Plaintiff’s computer and noted that it was warm but did not attempt to open it. Plaintiff was then told that he was free to leave.
16. After entering the terminal and starting to walk toward his connecting domestic flight, Plaintiff was stopped by two government agents who stated that they were with the Department of Homeland Security. The agents’ nametags identified them as Darin Louck and Marcial Santiago. Agents Louck and Santiago stated that Plaintiff was being detained and would miss his connecting flight. The two agents did not explain the reason or the authority for detaining Plaintiff.
17. Agents Louck and Santiago told Plaintiff that he would have to give them any electronic devices he was carrying. Plaintiff surrendered his computer, USB storage device, video camera, and cellular phone. Plaintiff was not asked for his consent and was not presented with a search warrant. Nor was he provided with any explanation of the purpose or authority for taking his property. The agents took Plaintiff’s devices and directed him to be seated and wait. When the agents returned a short time later, they were no longer in possession of the items they had taken.
18. Plaintiff was directed to accompany the two agents to an interrogation room, where he was initially asked a series of questions concerning the security of his computer. He advised the two agents that the computer’s hard disk was not encrypted, but that the computer was password protected. When asked, he declined to give them his password, explaining that the password itself would have allowed direct and unauthorized access to research on his employer’s server.
19. Agents Louck and Santiago detained Plaintiff for questioning for an extended period. They questioned Plaintiff regarding his association with Bradley Manning, his work for the Support Network, whether he had any connections to WikiLeaks, and whether he had been in
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contact with anyone from WikiLeaks during his trip to Mexico. Plaintiff was asked no questions relating to border control, customs, trade, immigration, or terrorism, and at no point did the agents suggest that plaintiff had broken the law or that his computer contained any illegal material. Plaintiff answered their questions truthfully and to the best of his ability.
20. When Plaintiff was finally allowed to leave, only his cell phone was returned to him. The other items which had been taken, specifically his laptop, USB device, and video camera, were not returned. Plaintiff was given a receipt listing the items that had been seized, indicating that “R. Hart, SAC CHI ICE” had taken custody of them. He was told that his devices would be returned by FedEx within a week.
21. On December 21, 2010, 48 days after the agents seized Plaintiff’s electronic devices, the devices remained in the government’s custody. On that date, Plaintiff, through counsel, sent a letter by facsimile to DHS, CBP, and ICE requesting that his electronic devices be returned to him immediately. He also requested that he be provided with documentation of the chain of custody of any copies made of the information contained on his devices and documentation of their destruction.
22. On December 22, 2010, Plaintiff’s electronic devices were returned to him by mail. Although Plaintiff had been informed they were taken into custody by “R. Hart, SAC CHI ICE,” his electronic devices were sent to him from the “DHS CIS New York District Office.”
23. In a letter to Plaintiff’s counsel dated December 30, 2010, general counsel for ICE noted that the devices had been returned but did not indicate whether any information derived from those electronic devices had been copied, what agencies or individuals were given any copies made, and whether any such copies had been destroyed.
The Search, Retention, and Dissemination of the Contents of Plaintiff’s Electronic Devices
24. Formal policy statements issued in 2009 by both CBP and ICE purport to authorize border agents to detain an international traveler’s “electronic devices,” broadly defined as devices which “contain information.” CBP Directive No. 3340-049, “Border Search of Electronic Devices Containing Information” (Aug. 20, 2009); ICE Directive No. 7-6.1, “Border Searches of Electronic Devices” (Aug. 18, 2009). These policies permit government officials to read and/or analyze the contents of such devices without any basis for suspicion of wrongdoing.
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This authority extends to any information which may they may discover, without regard to whether that information is personal, confidential, or even privileged.
25. Both CBP and ICE policies permit the detention of seized items after the traveler has left the border for purpose of further reading or analysis. The policies also authorize the sharing of a traveler’s devices or information obtained from those devices with other government agencies or private parties for the purpose of obtaining assistance in the search and analysis of their contents.
26. Although the CBP and ICE Policies purport to limit retention of information gleaned from a traveler’s electronic devices, retention is permitted whenever the information is deemed “relevant” to immigrations, customs, or any other law enforcement matter, and any retained information may be shared with federal, state, local, and foreign law enforcement agencies.
27. Given his placement on a watch list, his interrogation by DHS agents concerning the Bradley Manning Support Network, the length of time his electronic materials were held following their detention on November 3, 2010, the transfer of those materials from Chicago to New York, and the nature of the ongoing government investigations, Plaintiff alleges on information and belief that agents of Defendants, acting pursuant to established CBP and ICE policies, reviewed and copied the contents of his electronic devices, that this information has been retained by Defendants, and that it has been disclosed to and retained by other government agencies.
28. Plaintiff’s computer and other electronic devices contained private and sensitive materials which he did not intend to expose to view by others without his consent. This included personal and private information and information concerning his work on behalf of the Support Network which he chose to record or store in these devices.
29. The information stored on the devices taken from the Plaintiff included his personal e-mail communications covering a period of several years, including messages sent to and from family members and friends and messages concerning employment related matters, records of his personal finances, computer programming work in progress, and passwords allowing access to his bank account, his workplace computer, and secure communications websites.
30. The devices taken from the Plaintiff also contained information concerning the Support Network including the complete Support Network mailing list, confidential
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communications between members of the Steering Committee about strategy and fund-raising activities, the identity of donors, lists of potential donors and their ability to contribute, and notes on meetings with donors including personal observations about those donors.
31. At no point during the seizure, transfer, search, and prolonged detention of Plaintiff’s electronic devices or the copying, dissemination, and retention of information derived from them did the government have reasonable suspicion to believe that Plaintiff’s devices contained any material constituting a violation any law respecting customs, immigration, or terrorism.
The Seizure of Privileged Support Network Materials
32. The privacy of certain information concerning the operation and supporters of the Bradley Manning Support Network which has been accessed, retained, and disseminated by Defendants is essential to the effective operation of the organization. This includes, without limitation, internal communications concerning strategy and organization, and information concerning individual supporters and donors and potential supporters and donors.
33. The seizure and retention of this information and its dissemination to other governments, agencies, private entities, individuals, or the public at large will chill the associational rights of the Bradley Manning Support Network and its supporters, including the plaintiff, by exposing them to harassment or reprisals, by deterring open discussion of political strategy, and by causing the withdrawal of lawful support and deterring such support in the future.
34. The Manning prosecution is a highly charged and politically controversial issue. The President of the United States has publicly commented on the case, stating that Manning has broken the law. Manning and his supporters, along with WikiLeaks, have been criticized for posing a threat to national security and accused by some of treason. Plaintiff and other individuals who have publicly supported Manning have been identified by name and targeted for retaliation.
35. Because some supporters and contributors to the Support Network will contribute to the Manning defense or otherwise support the work of the Support Network only if their support can remain anonymous, the retention, disclosure, and/or use by Defendants and other government agencies of information concerning the identity of individual supporters and donors
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and of potential supporters and donors will materially interfere with lawful activities and association in support of Manning’s defense.
FIRST CAUSE OF ACTION 36. The search and prolonged detention of Plaintiff’s electronic devices, and Defendants’ continued retention and dissemination of the information they contained, are unreasonable and violate the Fourth Amendment to the United States Constitution.
SECOND CAUSE OF ACTION 37. The search and prolonged detention of Plaintiff’s electronic devices, and Defendants’ continued retention and dissemination of the information they contained, violate the First Amendment to the United States Constitution.
THIRD CAUSE OF ACTION 38. The interception and, more particularly, the retention and dissemination of information in Plaintiff’s computer and other electronic devices regarding the organization, work, and supporters and donors of the Bradley Manning Support Network violate the right of associational privacy guaranteed by the First Amendment to the United States Constitution.
PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests that this Court:
A. Declare that the prolonged seizure of Plaintiff’s laptop computer and other electronic devices and the review, copying, retention, and dissemination of their contents without reasonable suspicion violates the Fourth and First Amendments to the United States Constitution.
B. Enter preliminary and permanent injunctions requiring Defendants to return to Plaintiff all information in their custody or control obtained from Plaintiff’s electronic devices and, to the extent the information cannot be returned, to expunge or otherwise destroy that information.
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C. Enter preliminary and permanent injunctions requiring Defendants to disclose to Plaintiff (1) whether any information obtained from Plaintiff’s electronic devices has been disclosed or disseminated to any other agencies, organizations, individuals, or foreign governments, including but not limited to those agencies from which CBP and/or ICE sought technical assistance in accessing the information; (2) when and in what form any such disclosure or dissemination occurred; and (3) the specific data or information which was disclosed or disseminated, and to whom.
D. Award Plaintiff reasonable attorneys’ fees and costs. E. Grant any other relief the Court deems appropriate.
DAVID HOUSE By his attorneys,
___/s/ Catherine Crump__________ Catherine Crump ccrump@aclu.org (Pro Hac Vice Pending) Speech, Privacy and Technology Project American Civil Liberties Union 125 Broad Street, 17th floor New York, New York 10004 (212) 549-2500
____/s/ John Reinstein____________ John Reinstein, BBO # 416120 jreinstein@aclum.org Laura Rótolo, BBO # 665247 lrotolo@aclum.org Alexia De Vincentis, BBO # 679397 adevincentis@aclum.org American Civil Liberties Union
Of Massachusetts 211 Congress Street Boston, Massachusetts 02110 (617) 482-3170
Dated: May 13, 2011
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 Case 1:11-cv-10852-DJC Document 24 Filed 03/28/12 Page 1 of 27

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

__________________________________________

)

DAVID HOUSE,

)

)

Plaintiff,

)

)

v.

)

Civil Action No. 11-10852-DJC

)

JANET NAPOLITANO, in her official capacity )

as Secretary of the U.S. Department of

)

Homeland Security; ALAN BERSIN, in his )

official capacity as Commissioner, U.S. Customs )

and Border Protection; JOHN T. MORTON, in )

his official capacity as Director, U.S.

)

Immigration and Customs Enforcement,

)

)

Defendants.

)

__________________________________________)

MEMORANDUM AND ORDER

CASPER, J.

March 28, 2012

I. Introduction

Plaintiff David House (“House”)has brought this action againts Defendants Secretary of the

United States Department of Homeland Security Janet Napolitano, Commissioner of United States

Customs and Border Protection Alan Bersin, a nd Director of United Stat es Im migration and

Customs Enforcement John T. Morton (collectively, “hte Defendants”), alleging that federal agents’

search of his elec tronic devices at the border and prolonged seizure of sam e for forty-nine days

without reasonable suspicion (and retention and dsisemination of the information contained therein)

violated his rights under the Fourth Amendment to the United States Constitution (First Cause of

Action) and the First Amendment to the Constitution (Second Cause of Action). House also alleges

that the Defendants’ review, copying, retention and dissemination of the information contained on

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such devices violates his “right of associational privacy” under the First Amendment (Third Cause of Action). The Defendants have now m oved to dismiss the complaint, or in the alternative, f or summary judgment. For the reasons set forth belwo , the Defendants’ motion to dismiss is DENIED. II. Burden of Proof and Standard of Review
To survive a motion to dismiss, a complaint “must ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests,’ and allege ‘a plausible entitlement to relief.’” Decotiis v. Whittemore, 635 F.3d 22, 29 (1st Cir. 2011) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 559 (2007)). The Court accepts non-conclusory factual allegations in the complaint as t rue, Ocasio-Hernández v. Fortuño-Burset , 640 F.3d 1, 12 (1st Cir. 2011), and “draw[s ] a ll reasonable inferences in favor of the plaintiff[ ].” Gargano v. Liberty Int’l Underwriters, Inc., 572 F.3d 45, 48 (1st Cir. 2009). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintifsf'obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of a ction will not do.” Twom bly, 550 U.S. at 545 (internal quotation m arks and citations omitted). However, considering a motion to dismiss “is neither the time nor the place to resolve the factual disputes between the parties. Whether [the plaintiff] can prove what he has alleged is not the issue. At this stage of theproceeding we must take the complaint’s factual allegations as true,” as long as they paint “a plausible picture.” Haley v. City of Bosto,n657 F.3d 39, 52 (1st Cir. 2011).
A motion to dismiss may be converted to a motion for summary judgment “[a]t the discretion of the district court.” Trans-Spec Truck Serv., Inc. v. Caterpillar, Inc., 524 F.3d 315, 321 (1st Cir. 2008) (citing Fed. R. Civ. P. 12(d)). Sum mary j udgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
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show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Am. Airlines, Inc. v. Cardoza-Rodriguez, 133 F.3d 111, 116 (1st Cir. 1998). Although the Defendants offer suppl emental m aterials, including affidavits, the Court declines to treat the instant m otion as one for summary judgment. To do so would be prem ature where the parties have yet to engage in discovery and the factual record is incomplete and where, as House contends, t here appear to be m aterial facts as to his claim s that remain disputed at this juncture. III. Factual Allegations
A. House’s Role in the Bradley Manning Support Network The Court m ust accept as true the compl aint’s factual allegations in considering the Defendants’ motion to dism iss. The com plaint makes the fol lowing allegations. In June 2010, House and others organized political support for the defense of Bradley Manning, a United States serviceman deployed in Iraq w ho w as arrested in May 2010 on suspici on of having disclosed restricted m aterial to W ikiLeaks. Com pl. ¶¶ 9, 12. Manning’s ar rest followed W ikiLeaks’ publication of “Collateral Murder,” a video of U.S. forces killing Iraqi civilians during a 2007 air attack in Baghdad. Id. at ¶ 10. In July 2010, t he United States Army formally charged Manning with accessing and disclosing classified information without authorization, including a “classified video of a military operation” and fifty State Department Cables. Id.at ¶ 9. The U.S. Army brought further charges against Manning in March 2011, including a charge that he knowingly gave intelligence to the enemy. Id. Following his arrest, Manning wa s moved to a military detention facility in Quantico, Virginia, where he was helduntil April 2011 in solitaryconfinement. Id. Both Manning’s alleged disclosure of government records and the suspected connection between Manning
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and W ikiLeaks we re, at the tim e the com plaint was filed, the subjects of ongoing crim inal investigations. Id. at ¶ 11.
The Bradley Manning Support Network (“SupportNetwork”), formed by House and others, is an unincorporated association ofindividuals and organizations. Id. at ¶ 12. The Support Network is an “international grassroots effort to helpaccused whistle blower Pfc. Bradley Manning.” Id.Its purpose is to harness t he outrage of viewers of the “Collateral Murder” video into a coordinated effort in defense of Manning, coordinate internati onal support for him , raise funds for his legal defense and provide him with support during his imprisonment. Id. The Support Network pursues these objectives through its website and internet presence, the organization of public events and private contact with individuals. Id. The Support Network is not affiliated with WikiLeaks. Id.
In addition to his role as a founding member of the Support Network, House developed the organization’s website. Id. at ¶ 12-13. House is a computer programmer and researcher by trade. Id. at ¶ 12. He currently serves on the Support Network’s Steering Com mittee and r egularly communicates with others who are concerned about Manning’s treatment and prosecution. Id. at ¶ 13. House is also one of theSupport Network’s primary fundraisers and has been responsible for meeting potential supporters and soliciting donations for Manning’s legal defense. Id.
In the complaint, House alleges he became the target of federal investigators following the creation of the Support Network. Id. at ¶ 14. He also claims he has been visited and questioned, both at his home and at his place of employment, by investigators for the Department of Defense, the Department of State, and the Federal Bureau of Investigation. Id.House further alleges that he has been the subject of ongoing surveillance. Id. He has been placed on a watch list, which has resulted in him being stopped for questioning and searched each time he enters the United States.
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Id. Since September 2010, House contends he has been detained at the border on every occasion he has re-entered the United States after foreign travel and he has been questioned about his work with the Support Network or his political beliefs and activities. Id.
B. The November 3, 2010 Search and Seizure of House’s Electronic Devices On November 3, 2010, following a vacation in Mexico, House arrived at the Chicago O’Hare International Airport, where he was scheduled to catch a connecting flight to Boston. Id. at ¶ 15. At the tim e, House was car rying hi s laptop com puter, a USB storage device, a video cam era containing a memory storage device and a cellular phone. Id. Upon arrival, House passed through a passport control station, collected his baggage, and proceeded to customs, where a Customs and Border Protection (“CBP”) officer advised him that his belongings would be searched. I d. The officer examined House’s computer and noted that it was warm but did not attempt to open it. Id. House was then told he was free to leave. Id. House proceeded to the t erminal of his connecting flight to Boston. Id. at ¶ 16. After he entered the terminal and as he walked to hi s gate, two government agents stopped him. Id. The agents, identified by their nametags as Darin Louckand Marcial Santiago, stated that they were with the Department of Homeland Security (“DHS”). Id. Agents Louck and Santiago told House that he was being detained and would m iss his connecting flight. Id. The agents told House that he would have to give them any electronic devices he was carrying, without explaining why or asking for House’s consent. Id. at ¶ 17. House surrendered his com puter, USB s torage device, video camera and cellular phone. Id. House’s computer and other electronic devices contained private and personal information and information concerning his work on behalf of the Support Network. Id. ¶ 28. Specifically, the devices contained Hous e’s personal e-mail communications covering a
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period of several years, including m essages s ent to and from fam ily m embers and friends and concerning employment related matters, records of his personal finances, computer programming works in progress, and passwords allowing access to his bank account, to his workplace computer and to secure com munications we bsites. I d. at ¶ 29. The devices also contained inform ation concerning the Support Network, including the complete Support Network mailing list, confidential communications between m embers of the Steering Com mittee about strategy and fund- raising activities, the identity of donors, lists of potential donors and their ability to contribute, and notes from meetings with donors including personal observations about those donors. Id. at ¶ 30.
The agents took the devices and directed Hous e to wait. Id. at ¶ 17. W hen the agents returned a short time later, they were no longer in possession of the items they had taken. Id. The agents directed House to accompany them to an interrogation room, where he was initially asked a series of questions concerning the security of the computer. Id. at ¶ 18. He advised the agents that the computer’s hard disk was not encrypted, but that the computer was password protected. Id. When asked, he declined to give themhis password, explaining that providing the password would allow direct and unauthorized access to research on his employer’s server. Id.
House alleges that Agents Louck and Santiagodetained him for questioning for an extended period of time. Id. at ¶ 19. They questioned himabout his association with Manning, his work for the Support Network, whether he had any connec tion to WikiLeaks, and whether he had been in contact with anyone from WikiLeaks during his trip to Mexico. Id. The agents did not ask House any questions related to border control, customs, trade, immigration or terrorism, and at no point did the agents suggest that House had engaged in anyillegal activity or that his computer contained any illegal material. Id.
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When House was allowed to leave, only his cell phone was returned to hi.mId. at ¶ 20. The other items that had been taken–his computer, USB device and camera–were not returned. Id. The agents gave House a receipt listing the items thathad been seized, indicating that “R. Hart, SAC CHI ICE” had taken custody of them, and the agents told him that his other items would be returned by FedEx within a week. Id.
On December 21, 2010, forty-eight days after theagents seized House’s electronic devices, they remained in government custody. Id. at ¶ 21. On t hat date, House, through counsel, sent a letter by facsimile to DHS, CBP and Immigration and Customs Enforcement (“ICE”) requesting that his electronic devices be returned to himimmediately. Id. He also requested documentation of the chain of custody of any copies made of the information contained on his devices and documentation of their destruction. Id.
On December 22, 2010, House’s electronic devices were returned to him by mail from the “DHS CIS New York District Office.” Id. at ¶ 22. In a letter to House’s counsel dated December 30, 2010, general counsel for ICE noted that the devices had been returned but did not indicate whether any information derived from those devices had been copied, what agencies or individuals were given copies that were made, or whether any such copies had been destroyed. Id.at ¶ 23. The complaint alleges that the inf ormation “has b een disclosed to and retained by other governm ent agencies.” Id. at ¶ 27. IV. Procedural History
On May 13, 2011, House filed the instant action against the Defendants. D. 1. The complaint alleges that the search and prolonged detention of House’s electronic devices and the Defendants’ continued retention and dissem ination of the inform ation they contained violate his
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rights under the Fourth Am endment and the First Am endment to the United States Constitution, (First and Second Causes of Action, respectively, D. 1 at ¶¶ 36, 37), and that the interception and, specifically, the retention and dissemination of information in House’s computer and other electronic devices regarding the work, supporters and donorsof the Support Network violates House’s “right of associational privacy” under the First Amendment. Third Cause of Action, D.1 at ¶ 38. House seeks both declaratory and injunctive relief . Prayer f or Relief , D.1. On July 28, 2011, the Defendants moved to dismiss the complaint, or in the alternative, for summary judgment. D. 10. The Court held a hearing on the motion and took the matter under advisement. V. Discussion
A. Fourth Amendment Challenge to the Initial Search and Seizure 1. Whether Some Level of Suspicion is Required froSearching a Traveler’s Electronic Devices at the Border
The Fourth Amendment guarantees “the right of the people to be secure in their persons . . . and effects, against unreasonable searches and seiuzres, shall not be violated, and no Warrants shall issue, but upon probable cause . . . .” U.S. C ONST. a mend. IV. Although searches m ust be reasonable, “the Fourth Am endment’s balance of reasonableness is qualitatively dif ferent at the international border than in the interior.” United States v. Montoya de Hernand,e4z73 U.S. 531, 538 (1985). The Fourth Amendment’s balancing test of interests leans heavily toward the government at the border.1 See United States v. Ramsey, 431 U.S. 606, 619 (1977). This is so because “the United States, as sovereign, has the inherent au thority to protect, a nd a param ount interest in
1House does not contest that the November 3, 2010 search and seizure occurred at the border for the purposes of his constitutional claims. Pl. Opp. at 11 n. 5.
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protecting, its territorial integrity.” United States v. Flores-Montano, 541 U.S. 149, 153 (2004); see also Carroll v. Uni ted States, 267 U.S. 132, 154 (1925) (concluding that “[t]ravelers m ay be so stopped in crossing an international boundary because of national self-protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in”). Because searches atthe border are conducted pursuant to the governm ent’s longstanding right to protect itself, the Suprem e Court has stated that such searches are “reasonable simply by virtue of the fact hat they occur at the border.” Flores-Montan,o 541 U.S. at 152-53 (quoting Ramsey, 431 U.S. at 616). That is, “[r]outine searches of the persons and effects of entrants [into the United States] are not subject to any requirem ent of reasonable suspicion, probable cause, or warrant . . . . ” Montoya de Hernandez , 473 U.S. at 538; see also United States v. Barrow, 448 F.3d 37, 41 (1st Cir. 2006).
The Supreme Court, however has recognized certain limitations to the border search power to conduct routine searches without some level of suspicion. First, customs officials may need some level of suspicion to conduct “highly intrusive searches” im plicating the “dignity and privac y interests” of a person such as body cavity or strip searches. SeeFlores-Montano, 541 U.S. at 152 (holding that the removal, disassembly and reassembly of a vehicle’s fueltank at the border did not require particularized suspicion). The S upreme Court ha s described strip, body cavity, or involuntary x-ray searches as “nonroutine border searches” but expressly declined to suggest “what level of suspicion, if any, is required” for these searches. Montoya de Hernandez, 473 U.S. at 541 n. 4. Second, other than “highly intrusivesearches of the person,” Flores-Montano, 541 U.S. at 152, the Supreme Court has left open the question “whether, and under what circum stances, a border search might be deemed ‘unreasonable’ because ofthe particularly offensive manner in which it was
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carried out,” Id. at 155, n. 2 (quoting Ramsey, 431 U.S. at 618 n.13), but has not defined the precise contours of a search carried out in such a m anner. Third, the Suprem e Court has suggested the possibility that “some searches of property are so destructive as to require” some level of suspicion. Flores-Montano, 541 U.S. at 155-56.
House’s Fourth Am endment challenge to the reasona bleness of the border search of his laptop and other electronic devices is premised on the first two categories; House alleges that the search and seizure of his laptop computer and other electronic devices was highly intrusive given the personal nature and quality of information stored on these devices and because the search was conducted in a pa rticularly offensive m anner and such “non-routine” search would only have comported with the Fourth Amendment if the agents had some level of suspicion.2
Neither the Supreme Court nor the First Circuit has addressed whether a border search of electronic devices that store personal information constitutes a non-routine “highly intrusive search” which would require som e level of suspicion. However, the Suprem e Court has defi ned t hose “highly intrusive searches” that do require some level of suspicion and they involve searches of the person. In Montoya de Hernandez , the Suprem e Cour t hel d t hat the search of a traveler’s “alimentary canal” was “beyond the scope of a routine custom s search and inspection” and that particularized suspicion was required, noting that “[t]he int erests in hum an dignity and privacy which the Fourth Amendment protects forbids any such intrusion [beyond the body’s surface] on the mere chance that desired evidence might be obtained.” 473 U.S. at 540 n. 3 (internal quotation marks and citation omitted). In rejecting that some level of suspicion is required to search vehicles
2The Defendants do not argue that the agents had reasonable suspicion or any reason to conduct the search and seizure but rather rely on the argument that none was required.
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at the border, in Flores-Montano , the Supr eme Court explained that the “dignity and privacy interests” of “highly intrusive searches of a person” such as strip or body cavity searches “simply do not carry over to vehicles.” 541 U.S. at 152. The First Circuit has noted that the “only types of border search[es] of an individual’s person that have been consistently held to be non-routine are strip-searches and body-cavity searches.” United States v. Braks , 842 F.2d 509, 512-13 (1st Cir. 1988); see Barrow, 448 F.3d at 41 (stating that “[n]on-routien border searches include strip searches and body-cavity searches and can only be made if supported by a reasonable suspicion”); see also United States v. Kallevig, 534 F.2d 411, 414 n. 4 (1st Cir. 1976) (noting that “a border search that is less intrusive than a strip search requires no level of suspicion on the part of customs officials”).
In Braks, in summarizing the analysis of the Supreme Court and several Courts of Appeals, the First Circuit noted that “ [t]he degree of i nvasiveness or intrusiveness associated with any particular type of search determines whether ornot that search qualifies as routine,” 842 F.2d at 511, and identified the following factors a court may consider in determining the degree of invasiveness that accompanies any particular search: (1) “whether the search results in the exposure of intimate body parts or requires the suspect to disrobe”; (2) “whether physical contact between Custom s officials and the suspect occurs during the search”;(3) “whether force is usedto effect the search”; (4) “whether the type of search exposes the suspect to pain or danger”; (5) “the overall manner in which the search is conducted”; and (6) “whetherthe suspect’s reasonable expectations of privacy, if any, are abrogated by the search.” Id.at 512 (footnotes and citations omitted). The First Circuit explained that the “categorization of a border search as routine or non-routine can[ not] be accomplished merely by stacking up and com paring the several factors favoring each of the two classifications” and that the list of factors “is neither intended to be, nor can it be, an exhaustive list
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of equally-weighted concerns” because, “ [u]ltimately each case m ust turn upon its own particularized facts.” Id. at 513.3 It is no surprise that the first four factors identified under Braks address physical contact and force, since it is su ch contact with t he person being searched that fundamentally implicates “dignity and privacy interests.” Flores-Montano, 541 U.S. at 152.
Considering these factors in light of Supr eme Court precedent, it cannot be said that the search and seizure of House’s laptop and other electronic devices was so intrusive as to require any particularized suspicion. House contends that the search of a laptop and electronic devices implicates one’s “dignity and privacy interests,” not because there w as any disrobing, physical search of his person, force used or exposure to pa in or danger, but because s uch devices contain information concerning one’s thoughts, ideas and com munications and associations with others. However, such a search of a laptop computer or other electronic devices does not involve the same “dignity and privacy interests” as the “highly inutrsive searches of the person” found to require soem level of suspicion such as strip searches or body cavity searches. Flores-Montan,o541 U.S. at 152. The Supreme Court has not explicitly held that all porperty searches are routine or that such searches are categorically incapable of implicating the “dignity and privacy interests of the person being searched,” id., but the search of one’s personal information on a laptop computer, a container that
3In Flores-Montano in 2004, the Supreme Court rejected the Ninth Circuit’s approach in fashioning a balancing test to determine whether a border search is “routine” - a test the Ninth Circuit then applied to a vehicle search. 541 U.S. at 152. The Supreme Court stated that “[c]omplex balancing tests [such as this] to determine what is a ‘routine’ search of a vehicle, as opposed to a more ‘intrusive’ search of a person, have no place in border searches of vehicles.” Id. In the absence of subsequent Supreme Court or First Circuit authority overruling the Braks balancing test (articulated by the First Circuit in 1988), this Court has applied it here. Notwithstanding such application, the Court finds that the initial search and seizure search of House’s laptop computer and other electronic devices is nonetheless reasonable under the Fourth Amendment.
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stores information, even personal information, doesnot invade one’s dignity and privacy in the saem way as an involuntary x-ray, body cavity or strip search of person’s body or the type of search that have been held to be non-routine and require the government to assert some level of suspicion.
Rather, the search of House’s laptop and electronic devices is more akin to the search of a suitcase and other closed containers holding personal information travelers carry with them when they cross the border which may be routinely inspected by customs and require no particularized suspicion. The search of a laptop computer at the border is not vastly distinct from “suspicionless border searches of trave lers’ luggage that the Supreme Court [has] allowed.” United States v. Arnold, 533 F.3d 1003, 1009 (9th Cir. 2008). In the Ninth Circuit’s decision in Arnold, the court concluded that c ustoms officials did not need r easonable suspicion to search a laptop or other personal electronic storage devices at the border. Id. at 1008. In so concluding, Arnold reasoned that the search of a piece of property like a laptopor other electronic device “does not implicate the same ‘dignity and privacy’ concerns as a ‘highly intrusive search of a person.’” Id.(quoting FloresMontano, 541 U.S. at 152). In the Fourth Cirucit’s decision in United States v. Ickes, 393 F.3d 501, 504-506 (4th Cir. 2005), the court rejected the constitutional challenge to a border sear ch of a computer and required no reasonable suspicion tobe searched at the border given the government’s broad authority under the border search doctrine to se arch the belongings of all entrants without establishing probable cause or a warrant. Other courts have s imilarly found that the search of various electronic devices storing a traveler’s infromation may be searched at the border without any particularized suspicion. See United States v. Linarez-Delgado, 259 Fed. Appx. 506, 508 (3d Cir. 2007) ( finding that the search of the defendant’s videotape when the defendant re-entered the country did not require reasonable suspicion); Cancel-Rios v. United States, 2010 WL 3420805, at
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*3 (D.P.R. Aug. 30, 2010) (noting that the search of a traveler’s cell phone did not require a ny particularized suspicion and therefore concludi ng that it was not deficient perform ance by the petitioner’s counsel for not having pursued a m otion to suppress this evidence). The other cases cited by House, Pl. Opp. at 16, do not undermine the soundness of the reasoning in Arnoldand Ickes as the courts in those cases either declined to decide whether reasonable suspicion existed for the search, United States v. Irving, 452 F.3d 110, 123-24 (2d Cir. 2006) (involving border search of a person’s luggage or persona l be longings the Court found to be a categorically routine search), concluded that the government needed no reasonable suspicion to conduct the search and even if reasonable suspicion was required, such suspicion existed for the search, United States v. Hampe, 2007 WL 1192365, at *4 (D. Me. Apr. 18, 2007)r,eport and recommendation adopted by, 2007 WL 1806671 (D. Me. June 19, 2007) (involving a border search of files located on a com puter’s desktop); United States v. Bunty, 617 F. Supp. 2d 359, 364-65 (E.D. Pa. 2008) (involving a border search of defendant’s computer equipment); United States v. Furukawa, 2006 WL 3330726, at *1 (D. Minn. Nov. 16, 2006) (concluding that it “need not determine whether a border search of a laptop is ‘routine’ for purposes of the Fourth Amendment because, regardless, the magistrate judge correctly found the customs official had a reasonable suspicion in this case”), or assumed the search to be non-routine, but nonetheless affirm ed the district cour t’s holding on reasonable suspicion grounds, United States v. Roberts, 274 F.3d 1007, 1012 (5th Cir. 2001).
It is the level ofintrusiveness of the search that determines whether the search is routine, not the nature of the device or container to be searched. See, e.g., United States v. Giberson, 527 F.3d 882, 888 (9th Cir. 2008) (stating that “neither the quantity of information, nor the form in which it is stored, is legally relevant i n the Fourth Am endment context”). Carving out an exception for
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information contained on electronic devices would pr ovide travelers carrying such devices with greater privacy protection than others who choose to carry the same type of personal information in hard copy form.4 Id. at 888 (noting that “attempting to limit Fourth Amendment searches based on the form at of stored inform ation would be arbitrary”). Such a di stinction is arbitrary since it cannot be said that House has any greater expecta tion of privacy in the information stored on his computer than in personal information he might carry in papers stored in a briefcase at the border. Requiring reasonable suspicion for all computer searches may “allow individuals to render graphic contraband, such as child pornography, largely im mune to [a] border search sim ply by scanning images onto a com puter disk before arriving at the border.” United States v. Irving , 2003 W L 22127913, at *5 (S.D.N.Y. Sept. 15, 2003).Thus, the level of suspicion required to conduct a search of information carried by a personshould not be based on the formin which that information is kept and presented at the border. For these same reasons, the nature and quality of the information on the electronic devices searched cannot, alone, make the search particularly offensive so as to require a heightened level of suspicion.
House further alleges that he was targeted by customs officials for a search of his electronic devices because of his affiliation with the Manning Support Network. (Compl. ¶ 14). Accepting
4Contrary to House’s contentions, see Pl. Opp. at 14, the search of his laptop and other electronic devices is not akin to the search of one’s home or private cabin on a ship. Neither a private cabin on a ship or a home is a device for storing information that a person carries with them across the border. See Arnold, 533 F.3d at 1009 (stating that “beyond the simple fact that one cannot live in a laptop . . . a laptop goes with the person,” and is thus mobile). As the Supreme Court noted in Ramsey, “a port of entry is not a traveler’s home. His right to be let alone neither prevents the search of his luggage nor the seizure of unprotected, but illegal, materials when his possession of them is discovered during such a search.” 431 U.S. at 618 (quoting United States v. Thirty-Seven Photographs, 402 U.S. 363, 376 (1971)).
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as true House’s allegations concerning the official s’ s ubjective m otivations for searching his electronic devices, the Court nonetheless may not consider the underlying intent or motivation of the officers when analyzing the viability ofa Fourth Amendment claim, see Whren v. United States, 517 U.S. 806, 813 (1996) (stati ng that “we have been unwilling to entertain Fourth Am endment challenges based on the actual motivations of individual officers”); Irving, 452 F.3d at 123 (noting that “[a]s pretext should not determine the validity of a border search, it also should not determine whether a border search is routine”), which House appears to acknowledge. (Pl. Sur-reply at 11). The Court declines to do otherwise here at least in regard to House’s Fourth Amendment claim.
B. Fourth Amendment Challenge to the Duration of the Seiuzre of House’s Devices House argues that even if this Court rejects its argum ent that reasonable suspicion was required for the search on November 3, 2010, the Defendants still violated his Fourth Amendment right to be free fromunreasonable searches and seizures because of their prolonged detention of his electronic devices for forty-nine days. (Pl. Opp. at 19). The Dfeendants disagree, arguing that they have the authority to detain electronic devices seized at the border for a s long as it takes to adequately inspect those devices. (Def. Mem. at 19-21). House relies on Unite d St ates v. Place , 462 U.S. 696, 708-710 (1983) to support his argument that the Court here should require reasonable suspicion for the forty-nine-day detention of his electronic devices. There,the Court held that probable causewas the appropriate standard for the ninety-minute detention of luggage and noted that seizing luggage in a person’s immediate possession “intrudes on both the suspect’s possessory interest in his luggage as well as his liberty interest in proceeding with his itinerary.” Id. at 708. However, Place involved a domestic search and seizure, not one conducted at the international border where an individual’s expectation of
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privacy is dim inished, Montoya de Her nandez, 473 U.S. at 539 and where the “Governm ent’s interest in preve nting t he e ntry of unwanted persons and effects is at its zenith . . . .” FloresMontano, 541 U.S. at 152. Although Place is distinguishable because the initial detention did not occur at the border, the inquiry into the reasonableness of the duration of a seizure is nonetheless an appropriate consideration under the Fourth Amendment analysis. 462 U.S. at 709-10. That is, even if the initial seizure ofa laptop and other eelctronic devices at the border requires no reasonable suspicion, the “[g]overnment cannot simply seize property under its border search power and hold it for weeks, months, or years on a whim.” United States v. Cotterman, 637 F.3d 1068, 1070, 108283 (9th Cir. 2011) (finding that atwo-day seizure of the defendant’slaptop was reasonable, but only after a full account of what the government was doing with the laptop to ensure that it was acting expeditiously when it had possession of it was produced), reh’g en banc grant,e_d__ F.3d ___, 2012 WL 931079 (9th Cir. Mar. 19, 2012). The duration of the seizure must be “reasonably related in scope to the circum stances which justif ied it initially.” Id. at 1082 (extending the Montoya de Hernandez rule to agents’ search of laptops). House alleges it was not.
Accordingly, the Court concludes that House has alleged a plausible basis for this claim in his complaint, but the Court cannot determine, as the Defendants urge it to do, at this stage in the proceedings whether the 49-day detention of House’s electronic devices was reasonably related in scope to the circumstances that may have justified it at the border. The Defendants point out that ICE policy provides that searches of electronic devices are to be completed within thirty calendar days of the date of the detention, unless circumstances exist that warrant more time. (Def. Statement of Facts, ICE Directive No. 7-6.1 at ¶ 8.3(1)). There is no dispute betwee n the parties that the detention of House’s electronic devices exceeded this limit, but the Defendants argue that here, the
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inspection of House’s electronic devices for mor e t han thirty days was reasonable under the circumstances. Specifically, they argue that b ecause House did not provide his passwor d for the laptop, ICE spent additional time reviewing his devices. (Def. Mem. at 22). The Defendants further argue that ICE agents were not familiar with the software and operating system on House’s laptop and as a result, they needed to take additional steps to ensure that the images of plaintiff’s devices were made correctly. (Def. Mem. at 22-23). The Defendants also contend that there are a limited number of ICE agents certified in computer forensics, thus requiring more time for those agents to review House’s devices. (Def. Mem. at 23).
House disputes the reasonableness of the prolonged seizure of House’s electronic devices and has produced a declaration fromAlexander Stamos, a forensic investigator, to support House’s argument that a forty-nine-day seizure to revi ew and analyze his electronic devices was not a reasonable amount of time. (Pl. Opp., Declarationof Alexander Stamos (“Stamos Decl.”)). Stamos attests that the process of imaging and verification described in the Declaration of ICE agent Robert Marten (attached as Exhibit 4 to Def. Statement of Facts) should not have taken more than eighteen hours, did not require the one-week period that thedevices were retained by ICE in Chicago and did not require the period of nearly six weeks that the devices were retained in Ne w York. (Stam os Decl. at ¶ 6). The Defendantsdo not explain the extent to which the limited number of ICE agents certified in com puter forensics and their current workload prolonged the detention of House’s electronic devices or how the transferring of the devices affected that delay and the factual record remains undeveloped as to these issues material to the reasonableness of the duration of the seizure and House disputes the rationale pr offered by the Defendants for the forty-nine-day delay. The Court concludes that House has asserted a plausible Fourth Amendment claim in this respect and
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it declines to convert t he Defendants’ motion and grant sum mary judgment in their favor at this juncture and on the record currently before the Court. Accordingly, the Defendants’ m otion to dismiss House’s Fourth Amendment Claim is DENIED.
C. First Amendment Challenge to the Search and Seizure House alleges that the agents’ search and prolonged detention of his electronic devices and the retention and dissemination of the data therein violated the First Amendment (Second Cause of Action, Compl. ¶ 37) and “[t]he interception and, more particularly, the retention and dissemination of information in [his] computer and other electronic devices regarding the organization, work, and supporters and donors of the Bradley Manning Support Network violate the right of associational privacy guaranteed by the First Amendment.” (Compl. ¶ 38).
1. The Court Declines to Dismiss House’s First Amendment Claim The First Amendment to the United StatesConstitution provides that “Congress shall make no law . . . abridging the freedom of speech . . . or the right of the people peaceably to assemble.” U.S. CONST. am end. I. An individual’s Fi rst Amendment rights m ay not be violated sim ply because a search uncovers expressive material. See Zurcher v. Stanford Daily, 436 U.S. 547, 56368 (1978) (finding that the execution of search warrant to locate evidence - identifying individuals who attacked police officers in a particular inci dent - at the office of a student newspaper during which officers searched filing cabinets, desks and had the opportunity to read staffers’ notes and correspondence did not violate the Fourth or First Amendments). However, the search in this case is alleged to have targeted specifically House’s expressive material concerning the Support Network. The complaint further alleges that the agents stopped him at the border because of his association with Manning and the Support Network. Com pl. ¶¶ 14, 19. W hen agents Santiago and Louck
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stopped House while he was en route to his connec ting flight, they directed him to surrender the electronic devices he was carrying. Id. at ¶¶ 16-17. They questioned him for an extended period of time only after seizing his devices. Id.at ¶¶ 17, 19. When the agents questioned House, they did not ask him any questions related to border control, customs, trade, immigration, or terrorism and did not suggest that House had broken the law orthat his computer may contain illegal material or contraband. Id. at ¶ 19. Rather, their questions focusedsolely on his association with Manning, his work for the Support Network, whether he had anyconnections to WikiLeaks, and whether he had contact with anyone fromWikiLeaks during his trip to Mexico. Id.Thus, the complaint alleges that House was not randomly stopped at the border; it alleges that he was stopped and questioned solely to exam ine the contents of his laptop that cont ained expressive m aterial a nd investigate his association with the Support Network and Manning. 5 Al though the Defendants’ m otivation to search and retain House’s devices for their material concerning the Support Network and Manning, as alleged in the complaint, is not relevant to the Court’s analysis of his Fourth Amendment claim, it is pertinent to House’s First Amendment claim. See Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 870-71 (1982) (finding motivation of school board in its decision to rem ove certain books from the school library relevant in determ ining whether rem oval was unconstitutional under the First Amendment).
5The complaint alleges that the search and seizure that occurred on November 3, 2010 at the border occurred against a backdrop of federal agencies targeting House’s associational activity with the Support Network. House alleges that federal agencies first took an interest in him after his role in the creation of the Support Network and have questioned him in his home and at work about his political activities, beliefs and have monitored his activities. Id. at ¶ 14. House further alleges that his name has been placed on a watch list, which has resulted in the tracking of his travel and in being subjected to detention and to different searches at the border by government agencies. Id.
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The Defendants do not suggest that the detenotin of House’s devices was necessary to detect information relating to “terrorism, narcotics smuggling, and other national security matters; alien admissibility; contraband or trademark laws; and evidence of embargo violations or other import or e xport control laws,” Def. Statem ent of Fact s, ICE Directive No. 7-6.1 at ¶ 4, but that onl y incidentally, the agents stumbled upon information concerning the Support Network which does not implicate House’s First Amendment rights. Def.Mem. at 26; Def. Replyat 10-11. The Defendants also suggest that m ost of the questions the agents posed to House concerned Manning, who was under criminal investigation at the tim e of the search and seizure, and not the Support Net work. Def. Reply at 13 n. 10; 12/20/2011 Hearing Transcript at 17-18.
To support their argument that there is no First Amendment exception to the border search doctrine, the Defendants rely on t he Fourth Circuit’s decision in Ickes and the Ninth Circuit’s decision in Arnold , each declining to carve out a First Am endment exception for the search of electronic devices simply because they contained expressive material. The facts surrounding the seizures i n I ckes or Arnold are different in som e significant respects than those alleged in the complaint here. In Arnold, although the Court held that customs officers did not need reasonable suspicion to search a laptop or other personal electronic storage devices at the border, the officers at the border exa mined the visible files on the com puter and found what appeared to be child pornography. 533 F.3d at 1005. The offci ers did not seize the computer for an indefinite period of time until after they identified what seemed to be illegal material. Id. Similarly, in Ickes, the agents did not inspect the contents of the defendant’s computer until after they had discovered marijuana paraphernalia, photo albums of child pornography, a disturbing video focused on a young ball boy, and an outstanding warrant for the defendant’s arrest. 393 F.3d at 507. In holding that the
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Defendant had failed to state a First Amendment claim, the Fourth Circuit noted that “[a]s a practical matter, computer searches are m ost likely to oc cur where-as here-the traveler’s conduct or the presence of other items in his possession suggest the need to search further.” Id. In contrast to the searches and seizures at issue in Arnold and Ickes , here, the com plaint alleges that the agents targeted House and stopped him at t he a irport sp ecifically because of his association with the Support Network. Before even questioning House, the agents seized his electronic devices and in seizing them for forty-nine days, reviewed, retained, copied and disseminated information about the Support Network. 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 r eview the inform ation pertinent to that association and its m embers and supporters simply because the initial search occurred at the border. See Roaden v. Kentucky, 413 U.S. 496, 501 (1973) (noting that “[a] seizure reasonable as to one type of material in one setting may be unreasonable in a different setting or with respect to another kind of m aterial”); see also Ramsey, 431 U.S. at 624 (noting that any chill that m ight e xist ma y be m inimal and wholly subjective where customs officers opened envelopes at the border when they had reason to believe they contained something otherthan correspondence, while the erading of the correspondence inside the envelopes was forbidden).
2. House States a Claim for Violation ohf is Right to Freedom of Association under the First Amendment
The Supreme Court has “long understood as im plicit in the right to e ngage in activities protected by the First Amendment a corresponding rightto associate with others in pursuit of a wide
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variety of political, social, economic, educational, religious, and cultural ends.” Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984) (citing cases). That is, “[t]he First Amendment protects political association as well as political expression.” Buckley v. Valeo, 424 U.S. 1, 15 (1976). The right of expressive association “is especially important in preserving political and cultural diversity and in shielding dissident expression from suppression by the majority.” Roberts, 468 U.S. at 622. The government may nonetheless engage in some conduct that “might make it more difficult for individuals to exercise their freedomof association, [but] this consequence does not, without more, result in violation of the First Amendment.” Fighting Finest, Inc. v. Bratton, 95 F.3d 224, 228 (2d Cir. 1996). “To be cogni zable, the interf erence with associational rights m ust be ‘direct and substantial’ or ‘significant.’” Id. (quoting Lyng v. Int’l Union, 485 U.S. 360, 366, 367 & n. 5 (1988) (further citation omitted)). The complaint alleges, and the Defendants do not dispute, that House has a protected right to expresshimself through his association with the Support Network. The only question, therefore, is whether the com plaint ad equately alleges an interference with House’s associational rights that was “direct and substantial” or “significant.” Id.
Here, the complaint’s allegations are sufficient to support a reasonable inference that the agents’ interferences with House’s associational righst were direct and substantial to state a plausible right of association claim . As discussed above, the agents questioned House solely about his association with Manning, his work for the Support Network, whether he had any connections to WikiLeaks, and whether he had contact with anyonefrom WikiLeaks during his trip to Mexico. Id. at ¶ 19. None of their questions concerned borderocntrol, customs, trade, immigration, or terrorism. Id. House alleges he was questioned solely becausoef his association withthe Support Network and
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Manning and so that the agents could search th e information on his laptop and other electronic devices.
Because of the seizure of hislaptop and other devices, House alleges that the Defendants are now in possession of the complete, confidential list of the SupportNetwork members and supporters, as well as email and documents detailing the Support Network’s inner workings. Id. at ¶¶ 27, 28, 30, 33. The complaint also alleges that the information was copied and retained by ICE and that it has been dissem inated to other governm ent agencies. Id. at ¶ 27. And, as House has a lleged, because there are supporters and donors to Mannings’ defense who wish to remain anonymous, the seizure of House’s records by Defendants and the access to that information by other government agencies will deter support for the organization in the future and chill the associational rights of the Support Network and its supporters. Id. at ¶¶ 33, 35, 38. Com pulsory disclosure of the Support Network’s members, supporters and internal communications of the organization, as that which is alleged here, “can seriously infringe on privacy of association and belief guaranteed by the First Amendment,” Buckley, 424 U.S. at 64, and can “have . . . a profound chilling effect . . . .” Perry v. Schwarzenegger, 591 F.3d 1126, 1135 (9th Cir. 2009); see alsoAFL-CIO v. FEC, 333 F.3d 168, 175 (D.C. Cir. 2003) (noting that the “Supreme Court has long recognized that compelled disclosure of political affiliations and activities can impose just as substantial a burden on First Amendment rights as can direct regulation”).
The Defendants argue that any infringement on House’s right of association was incidental to a valid exercise of the agents’ authority to search and detain his items at the border. (Def. Mem. at 26). The Defendants rely on a series of cases to support their argument that House cannot state a First Am endment associational claim because he has failed to show a form of retaliation,
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harassment or intimidation by the government, (Def. Mem. at 27), but each case the Governm ent cites concerned whether the evidence was sufficient to support a First Am endment claim at the summary judgment stage. See, e.g. , Lyng, 485 U.S. at 367 n.5 (noting that the “facts . . . do not demonstrate any ‘significant’ interference” with appellees’ associational rights); Doyle v. N.Y. State Div. of Hous. and Cm ty. Renewal, 1999 WL 177441, at *7-8 (S.D.N .Y. Mar. 30, 1999) (f inding evidence presented on summary judgment was insufficient to support First Amendment claim); see also In re Motor Fuel Temperature Sales Practices Litig., 641 F.3d 470, 489 (10th Cir. 2011) (finding that appellants f ailed to m ake “an evidentiary showing of a reasonable probability of chill on an association right” sufficient to support granting a writ of m andamus) (internal citation om itted). Moreover, the Suprem e Court has noted that “associational rights are protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference and tha t t hese rights can be abridged even by gove rnment actions that do not directly restrict individuals’ ability to associate freely.” Lyng, 485 U.S. at 367 n. 5 (internal quotation m arks and citation omitted).
At this juncture, House has alleged sufficientfacts to support his First Amendment claim and any dispute as to what the evidence will or will not show is best answered at summary judgment or trial on the basis of discovered facts, notat this stage on the pleadings. Cf.Tabbaa v. Chertoff, 509 F.3d 89, 105-106 (2d Cir. 2007) (granti ng s ummary judgm ent in defendants’ favor on First Amendment claim because the government had offered sufficient evidence to establish that it had a compelling interest in preventing suspected terrorsits who had attended the conference fromentering the United States and that it could not have achieved that interest through means less restrictive of plaintiffs’ associational freedoms).
25

Case 1:11-cv-10852-DJC Document 24 Filed 03/28/12 Page 26 of 27
The Defendants’ a ssertion that concluding that House has alleged a plausible First Amendment claim would be somehow inconsistent with the Court’s finding that the initial search and seizure was routine under the Fourth Amendment analysis ignores the difference in legal standards that apply to Fourth Am endment and First Amendment claims. See Tabbaa, 509 F.3d at 102 n. 4 (noting that “distinguishing between incidental and substantial burdens under the First Amendment requires a different analysis, applyni g different legal standards, thandistinguishing what is and is not routine in the Fourth Amendment border context”). That the initial search and seizure occurred at the border does not strip House of his First Amendment rights, particularly given the allegations in the complaint that he was targeted specifically because of his association with the Support Network and the search of his laptop resulted in the disc losure of the organizations, m embers, supporters donors as w ell as internal organization com munications that H ouse alleges will deter f urther participation in and support of the organization. Ac cordingly, the Defendants’ m otion to dismiss House’s First Amendment claim is DENIED.
D. House’s Request for Injunctive Relief Regarding the Dissemination and Retention of the Information on his Electronic Devices
House seeks, among other forms of relief, an injunction requiring the Defendants to reveal to whom they disclosed or disseminated information contained on his electronic devices, (Compl., Prayer for Re lief, C), and an injunction requiring them to return all inform ation obtained from House’s electronic devices and if the information cannot be returned, to expunge or otherwise destroy it. (Compl., Prayer for Relief, B). The Defendants argue that eevn if House is ultimately successful on his Constitutional claims, he is nonetheless not entitled to this formof injunctive relief. The Court need not reach this issue, as it is prem ature at this stage in the proceedings. “An injunction i s an
26

Case 1:11-cv-10852-DJC Document 24 Filed 03/28/12 Page 27 of 27
exercise of a court’s equitable authority, to be ordered only after taking into account all of the circumstances that bear on the need for prospective relief.” Salazar v. Buono , ___ U.S. ___, 130 S.Ct. 1803, 1816 (2010). The Supreme Court has instructed courts to be “particularly cautious when contemplating relief that implicates public interests.” Id. (and cases cited). The Court proceeds in such manner here particularly in light of the Defendants’ argum ent that granting the type of reli ef requested here would compromise law enforcement functions ICE performs for the Government as it could inhibit (or interf ere with) appropriate in formation sharing between agencies that would identify threats to the United States. (Def. Reply at 16). Because the Court does not have before it all of the discovered facts as it would at a later stage at sum mary judgment or trial, the Court is unable to adequately assess all of the circumstances that would bear on the issuance for an injunction in the particular form requested by House at this time. VI. Conclusion
For the foregoing reasons, the Defendants’ motion to dismiss is DENIED. So ordered.
/s/ Denise J. Casper United States District Judge
27

 
 Case 1:11-cv-10852-DJC Document 44 Filed 05/23/13 Page 1 of 3

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

DAVID HOUSE,

)

)

Plaintiff,

)

)

v.

)

)

JANET NAPOLITANO, in her official capacity as

)

Secretary of the U.S. Department of Homeland

)

Security; ALAN BERSIN, in his official capacity as

)

Commissioner, U.S. Customs and Border Protection;

)

JOHN T. MORTON, in his official capacity as Director, )

U.S. Immigration and Customs Enforcement,

)

)

Defendants.

)

)

Case No. 1:11-cv-10852-DJC

STIPULATION OF DISMISSAL

Pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii), Plaintiff David House

and Defendants Janet Napolitano, Secretary of the U.S. Department of Homeland Security, Alan

Bersin, Commissioner, U.S. Customs and Border Protection, and John Morton, Director, U.S.

Immigration and Customs Enforcement, in their official capacities, hereby stipulate to the

dismissal of this Action with prejudice.

Each party shall bear his or her own costs, expenses and attorneys’ fees.

Dated: May 23, 2013

Respectfully Submitted,

AMERICAN CIVIL LIBERTIES UNION

U.S. DEPARTMENT OF JUSTICE
STUART F. DELERY Principal Deputy Assistant Attorney General DIANE KELLEHER Assistant Branch Director

Case 1:11-cv-10852-DJC Document 44 Filed 05/23/13 Page 2 of 3

By: /s/ Catherine Crump Catherine Crump ccrump@aclu.org Speech, Privacy and Technology Project 125 Broad Street, 17th floor New York, New York 10004 (212) 549-2500 John Reinstein, BBO # 416120 jreinstein@aclum.org Laura Rótolo, BBO # 665247 lrotolo@aclum.org adevincentis@aclum.org American Civil Liberties Union
of Massachusetts 211 Congress Street Boston, Massachusetts 02110 (617) 482-3170

By: /s/ Marsha Stelson Edney Marsha Stelson Edney Senior Trial Counsel U.S. Department of Justice, Civil Division Federal Programs Branch 20 Massachusetts Ave., N.W., Room 7148 Washington, D.C. 20530 Tel.: (202) 514-4520 Fax.: (202) 616-8470 Email: marsha.edney@usdoj.gov

Case 1:11-cv-10852-DJC Document 44 Filed 05/23/13 Page 3 of 3
CERTIFICATE OF SERVICE I hereby certify that the foregoing document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF).
/s/ Catherine Crump n Catherine Crump May 23, 2013

 
 Case: 1:11-cv-10852 As of: 06/16/2014 03:30 PM EDT 1 of 7
United States District Court District of Massachusetts (Boston) CIVIL DOCKET FOR CASE #: 1:11−cv−10852−DJC

CLOSED

House v. Napolitano et al Assigned to: Judge Denise J. Casper Demand: $0 Cause: 28:1331 Fed. Question
Plaintiff
David House

Date Filed: 05/13/2011 Date Terminated: 05/24/2013 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Alexia R. De Vincentis American Civil Liberties Union 211 Congress Street Boston, MA 02110 617−482−3170 Email: alexia.devincentis@ropesgray.com TERMINATED: 10/03/2011 ATTORNEY TO BE NOTICED
Catherine Crump Speech, Privacy and Technology Project American Civil Liberties Union 125 Broad Street 18th Floor New York, NY 10004 212−519−7806 Email: ccrump@aclu.org ATTORNEY TO BE NOTICED
John Reinstein 51 Abbottsford Road Brookline, MA 02446 617−515−7986 Email: jcreinstein@gmail.com ATTORNEY TO BE NOTICED
Laura Rotolo American Civil Liberties Union 211 Congress Street Boston, MA 02110 617−482−3170 Fax: 617−451−0009 Email: lrotolo@aclum.org ATTORNEY TO BE NOTICED

V.
Defendant
Janet Napolitano in her official capacity as Secretary of the U.S. Department of Homeland Security

represented by Diane Kelleher Department of Justice, Civil Division, Federal Programs 20 Massachusetts Avenue NW Room 7318 Washington, DC 20001 202−514−4775 Email: diane.kelleher@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer A. Serafyn

Case: 1:11-cv-10852 As of: 06/16/2014 03:30 PM EDT 2 of 7

United States Attorney's Office MA Suite 9200 1 Courthouse Way Boston, MA 02210 617−748−3188 Fax: 617−748−3969 Email: jennifer.serafyn@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marsha S. Edney Department of Justice Federal Programs Branch 20 Mass Avenue, NW Washington, DC 20001 202−514−4520 Email: marsha.edney@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy E. Powell US Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Room 7217 Washington, DC 20530 202−514−9836 Fax: 202−616−8202 Email: Amy.Powell@usdoj.gov ATTORNEY TO BE NOTICED

Barbara Healy Smith United States Attorney's Office John Joseph Moakley Federal Courthouse 1 Courthouse Way Suite 9200 Boston, MA 02210 617−748−3100 Fax: 617−748−3969 TERMINATED: 02/13/2013 ATTORNEY TO BE NOTICED

Defendant
Alan Bersin in his official capacity as Commissioner, U.S. Customs and Border Protection

represented by Diane Kelleher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer A. Serafyn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marsha S. Edney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy E. Powell (See above for address) ATTORNEY TO BE NOTICED

Barbara Healy Smith (See above for address)

Case: 1:11-cv-10852 As of: 06/16/2014 03:30 PM EDT 3 of 7

TERMINATED: 02/13/2013 ATTORNEY TO BE NOTICED

Defendant
John T. Morton in his official capacity as Director, U.S. Immigration and Customs Enforcement

represented by Diane Kelleher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer A. Serafyn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marsha S. Edney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy E. Powell (See above for address) ATTORNEY TO BE NOTICED

Barbara Healy Smith (See above for address) TERMINATED: 02/13/2013 ATTORNEY TO BE NOTICED

Date Filed 05/13/2011 05/13/2011 05/13/2011
05/13/2011 05/19/2011 05/19/2011 05/19/2011 05/24/2011

# Docket Text
1 COMPLAINT against All Plaintiffs Filing fee: $ 350, receipt number 0101−3403625 (Fee Status: Filing Fee paid), filed by David House. (Attachments: # 1 Civil Cover Sheet, # 2 Civil Cover Sheet Category Sheet)(Reinstein, John) (Entered: 05/13/2011)
ELECTRONIC NOTICE of Case Assignment. Judge Denise J. Casper assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Jennifer C. Boal. (Abaid, Kimberly) (Entered: 05/13/2011)
2 Summons Issued as to Alan Bersin, John T. Morton, Janet Napolitano. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (Attachments: # 1 Notice of Summons) (York, Steve) (Entered: 05/13/2011)
3 MOTION for Leave to Appear Pro Hac Vice for admission of Catherine Crump Filing fee: $ 50, receipt number 0101−3404557 by David House. (Attachments: # 1 Affidavit of Catherine Crump)(Reinstein, John) (Entered: 05/13/2011)
4 AFFIDAVIT OF SERVICE Executed by David House. Janet Napolitano served on 5/13/2011, answer due 6/3/2011. Acknowledgement filed by David House. (De Vincentis, Alexia) (Entered: 05/19/2011)
5 AFFIDAVIT OF SERVICE Executed by David House. Alan Bersin served on 5/13/2011, answer due 6/3/2011. Acknowledgement filed by David House. (De Vincentis, Alexia) (Entered: 05/19/2011)
6 AFFIDAVIT OF SERVICE Executed by David House. John T. Morton served on 5/13/2011, answer due 6/3/2011. Acknowledgement filed by David House. (De Vincentis, Alexia) (Entered: 05/19/2011)
Set/Reset Answer Deadlines for All Defendants. Answers due 7/13/2011. (Gaudet, Jennifer) (Entered: 05/24/2011)

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06/01/2011
07/05/2011 07/05/2011 07/06/2011
07/13/2011 07/28/2011 07/28/2011 07/28/2011 08/17/2011 08/24/2011
09/09/2011 09/12/2011 09/21/2011 09/21/2011 09/21/2011 09/30/2011

Judge Denise J. Casper: ELECTRONIC ORDER entered granting 3 Motion for Leave to Appear Pro Hac Vice Added Catherine Crump. Attorneys admitted Pro Hac Vice must register for electronic filing. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Gaudet, Jennifer) (Entered: 06/01/2011)
7 NOTICE of Appearance by Barbara Healy Smith on behalf of Alan Bersin, John T. Morton, Janet Napolitano (Healy Smith, Barbara) (Entered: 07/05/2011)
8 Joint MOTION to Enter Briefing Schedule by Alan Bersin, John T. Morton, Janet Napolitano. (Attachments: # 1 Text of Proposed Order)(Healy Smith, Barbara) (Entered: 07/05/2011)
Judge Denise J. Casper: ELECTRONIC ORDER entered granting 8 Joint Motion to Enter Briefing Schedule by Alan Bersin, John T. Morton, Janet Napolitano. Defts.' motion in response to complaint due 7/28/2011; pltf.'s opp due 8/31/2011; defts.' reply brief due 9/14/2011 and defts.' sur−reply due 9/28/2011. (Gaudet, Jennifer) (Entered: 07/06/2011)
9 NOTICE of Appearance by Diane Kelleher on behalf of Alan Bersin, John T. Morton, Janet Napolitano (Kelleher, Diane) (Entered: 07/13/2011)
10 MOTION to Dismiss or in the Alternative for Summary Judgment by Alan Bersin, John T. Morton, Janet Napolitano.(Kelleher, Diane) (Entered: 07/28/2011)
11 MEMORANDUM in Support re 10 MOTION to Dismiss or in the Alternative for Summary Judgment filed by Alan Bersin, John T. Morton, Janet Napolitano. (Kelleher, Diane) (Entered: 07/28/2011)
12 STATEMENT of facts re 10 MOTION to Dismiss or in the Alternative for Summary Judgment. (Attachments: # 1 Exhibit Exhibits to Defendants' LR 56.1 Statement)(Kelleher, Diane) (Entered: 07/28/2011)
13 MOTION for Extension of Time to 09/14/11 to File Response/Reply as to 10 MOTION to Dismiss or in the Alternative for Summary Judgment by David House. (Attachments: # 1 Text of Proposed Order)(Crump, Catherine) (Entered: 08/17/2011)
Judge Denise J. Casper: ELECTRONIC ORDER entered granting 13 Unopposed Motion for Extension of Time to File Response/Reply re 10 MOTION to Dismiss or in the Alternative for Summary Judgment. Responses due by 9/14/2011. "Granted to this extent counsel must seek leave of Court to file reply and sur−reply." (Gaudet, Jennifer) (Entered: 08/24/2011)
14 MOTION for Extension of Time to 09/21/2011 to File Response/Reply as to 10 MOTION to Dismiss or in the Alternative for Summary Judgment by David House. (Attachments: # 1 Text of Proposed Order)(Crump, Catherine) (Entered: 09/09/2011)
Judge Denise J. Casper: ELECTRONIC ORDER entered granting 14 Unopposed Motion for Extension of Time to File Response/Reply re 10 MOTION to Dismiss or in the Alternative for Summary Judgment. Responses due by 9/21/2011. (Gaudet, Jennifer) (Entered: 09/12/2011)
15 Opposition re 10 MOTION to Dismiss or in the Alternative for Summary Judgment filed by David House. (Crump, Catherine) (Entered: 09/21/2011)
16 MEMORANDUM in Opposition re 10 MOTION to Dismiss or in the Alternative for Summary Judgment filed by David House. (Crump, Catherine) (Entered: 09/21/2011)
17 Statement of Material Facts L.R. 56.1 re 10 MOTION to Dismiss or in the Alternative for Summary Judgment filed by David House. (Crump, Catherine) (Entered: 09/21/2011)
18 MOTION to Withdraw as Attorney by David House.(De Vincentis, Alexia) (Entered: 09/30/2011)

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10/03/2011 10/11/2011 10/27/2011 10/28/2011
10/28/2011 11/15/2011
11/15/2011
12/05/2011 12/06/2011
12/06/2011 12/09/2011 12/09/2011

Judge Denise J. Casper: ELECTRONIC ORDER entered granting 18 Motion to Withdraw as Attorney. Attorney Alexia R. De Vincentis terminated. (Gaudet, Jennifer) (Entered: 10/03/2011)
ELECTRONIC NOTICE Setting Hearing on Motion 10 MOTION to Dismiss or in the Alternative for Summary Judgment : Motion Hearing set for 12/20/2011 02:00 PM in Courtroom 11 before Judge Denise J. Casper. (Hourihan, Lisa) (Entered: 10/11/2011)
19 MOTION for Leave to File Reply Brief in Response to Plaintiff's Opposition (Unopposed) by Alan Bersin, John T. Morton, Janet Napolitano. (Attachments: # 1 Exhibit Defendants' Reply Brief)(Kelleher, Diane) (Entered: 10/27/2011)
Judge Denise J. Casper: ELECTRONIC ORDER entered granting 19 Unopposed Motion for Leave to File a Reply Brief; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Gaudet, Jennifer) (Entered: 10/28/2011)
20 REPLY to Response to 10 MOTION to Dismiss or in the Alternative for Summary Judgment filed by Alan Bersin, John T. Morton, Janet Napolitano. (Kelleher, Diane) (Entered: 10/28/2011)
ELECTRONIC NOTICE TO COUNSEL re: Cameras in the Courtroom Project. The parties in this case are hereby notified that this scheduled proceeding is eligible for video recording. Counsel are directed to the district court web site at http://www.mad.uscourts.gov/general/cameras.html to determine if they wish to consent to video recording. Responses are due seven days from the date of this notice. (Re: motion to dismiss or in the alternative for summary judgment scheduled for 11/20/11) (Hourihan, Lisa) (Entered: 11/15/2011)
CORRECTED ELECTRONIC NOTICE TO COUNSEL re: Cameras in the Courtroom Project. (TO REFLECT PROPER HEARING DATE) The parties in this case are hereby notified that this scheduled proceeding is eligible for video recording. Counsel are directed to the district court web site at http://www.mad.uscourts.gov/general/cameras.html to determine if they wish to consent to video recording. Responses are due seven days from the date of this notice. (Re: motion to dismiss or in the alternative for summary judgment scheduled for 12/20/11) (Hourihan, Lisa) (Entered: 11/15/2011)
21 MOTION for Leave to File Surreply by David House. (Attachments: # 1 Exhibit Proposed Surreply, # 2 Affidavit Declaration of Alexander Stamos)(Crump, Catherine) (Entered: 12/05/2011)
Judge Denise J. Casper: ELECTRONIC ORDER entered granting 21 Motion for Leave to File Surreply in Opposition to Motion to Dismiss; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Gaudet, Jennifer) (Entered: 12/06/2011)
22 SUR−REPLY to Motion re 10 MOTION to Dismiss or in the Alternative for Summary Judgment filed by David House. (Attachments: # 1 Affidavit Declaration of Alexander Stamos)(Crump, Catherine) (Entered: 12/06/2011)
ELECTRONIC NOTICE of Hearing. Telephone Conference set for 12/9/2011 10:00 AM in Courtroom 11 before Judge Denise J. Casper. (Hourihan, Lisa) (Entered: 12/09/2011)
ELECTRONIC Clerk's Notes for proceedings held before Judge Denise J. Casper: Telephone Conference held on 12/9/2011. Discussion on cameras in the courtroom pilot project and the procedures. (Court Reporter: Lee Marzilli at leemarz@aol.com.)(Attorneys present: Catherine Crump and John Reinstein for theplaintiff. Diane Kelliher and Rosemary Connelly for the Government.) (Hourihan, Lisa) (Entered: 12/09/2011)

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12/09/2011
12/20/2011
03/26/2012 03/28/2012 03/28/2012 03/28/2012 04/02/2012 04/03/2012
04/10/2012 04/11/2012
04/27/2012 04/27/2012 06/11/2012 06/12/2012 06/13/2012 06/18/2012 06/18/2012

ELECTRONIC NOTICE Resetting Hearing on Motion 10 MOTION to Dismiss or in the Alternative for Summary Judgment : Motion Hearing set for 12/20/2011 02:00 PM in Courtroom 2 before Judge Denise J. Casper. (NOTE: change in courtroom only)(Hourihan, Lisa) (Entered: 12/09/2011)
ELECTRONIC Clerk's Notes for proceedings held before Judge Denise J. Casper: Motion Hearing held on 12/20/2011 re 10 MOTION to Dismiss or in the Alternative for Summary Judgment filed by Alan Bersin, John T. Morton, Janet Napolitano. Arguments. Court takes under advisement 10 Motion to Dismiss; (Court Reporter: Debra Joyce at joycedebra@gmail.com.)(Attorneys present: Catherine Crimp and John Reinstein for the plaintiff. Diane Kelleher, Sandra Schraibman and Paul McClusky for the defendants.) (Hourihan, Lisa) (Entered: 12/21/2011)
23 NOTICE by Alan Bersin, John T. Morton, Janet Napolitano (Attachments: # 1 Exhibit Cotterman En Banc Order)(Kelleher, Diane) (Entered: 03/26/2012)
24 Judge Denise J. Casper: ORDER entered. MEMORANDUM AND ORDER − denying Defendants' motion to dismiss. (Maynard, Timothy) (Entered: 03/28/2012)
25 NOTICE of Scheduling Conference Scheduling Conference set for 5/7/2012 02:15 PM in Courtroom 11 before Judge Denise J. Casper. (Hourihan, Lisa) (Entered: 03/28/2012)
26 Judge Denise J. Casper: ORDER entered. Standing Order Re: Courtroom Opportunities for Relatively Inexperienced Attorneys(Hourihan, Lisa) (Entered: 03/28/2012)
27 MOTION for Extension of Time to Answer the Complaint , MOTION for Extension of Time to File Answer ( Responses due by 4/16/2012) by Alan Bersin, John T. Morton, Janet Napolitano.(Kelleher, Diane) (Entered: 04/02/2012)
Judge Denise J. Casper: ELECTRONIC ORDER entered granting 27 Motion for Extension of Time; granting 27 Motion for Extension of Time to Answer re 1 Complaint Alan Bersin answer due 4/27/2012; John T. Morton answer due 4/27/2012; Janet Napolitano answer due 4/27/2012. (Maynard, Timothy) (Entered: 04/03/2012)
28 Joint MOTION for Extension of Time to Reschedule Scheduling Conference to June 18, 2012 by Alan Bersin, David House, John T. Morton, Janet Napolitano.(Kelleher, Diane) (Entered: 04/10/2012)
Judge Denise J. Casper: ELECTRONIC ORDER entered granting 28 Motion for Extension of Time Scheduling Conference set for 6/18/2012 03:00 PM in Courtroom 11 before Judge Denise J. Casper. (Maynard, Timothy) (Entered: 04/11/2012)
29 NOTICE of Appearance by Amy E. Powell on behalf of Alan Bersin, John T. Morton, Janet Napolitano (Powell, Amy) (Entered: 04/27/2012)
30 ANSWER to 1 Complaint by Alan Bersin, John T. Morton, Janet Napolitano.(Powell, Amy) (Entered: 04/27/2012)
31 JOINT STATEMENT of counsel Pursuant to Local Rule 16.1(D). (Kelleher, Diane) (Entered: 06/11/2012)
32 CERTIFICATION pursuant to Local Rule 16.1 (d)(3). (Kelleher, Diane) (Entered: 06/12/2012)
33 CERTIFICATION pursuant to Local Rule 16.1 . (Reinstein, John) (Entered: 06/13/2012)
34 ELECTRONIC NOTICE OF RESCHEDULING Scheduling Conference set for 6/18/2012 04:00 PM in Courtroom 11 before Judge Denise J. Casper. (Maynard, Timothy) (Entered: 06/18/2012)
35 ELECTRONIC Clerk's Notes for proceedings held before Judge Denise J. Casper: Scheduling Conference held on 6/18/2012, Initial disclosures due by 6/29/12. Amended Pleadings due by 8/29/2012. Fact discovery due by 3/15/13. Plaintiff's

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06/19/2012 01/11/2013 01/11/2013 03/05/2013 03/13/2013 03/15/2013 04/23/2013
05/23/2013

expert disclosure due by 4/15/13. Defendants' expert disclosure due by 5/15/13. Expert discovery to be completed by 6/14/2013. Summary Judgment Motions due by 7/15/2013. Opposition and/or cross motion for summary judgment due by 8/15/13. Status Conference set for 3/18/2013 02:00 PM in Courtroom 11 before Judge Denise J. Casper(Court Reporter: Catherine Handel at 617−261−0555.)(Attorneys present: Catherine Crump and John Reinstein for the plaintiff. Diane Kelliher for the defendants.) (Hourihan, Lisa) (Entered: 06/19/2012)
36 Judge Denise J. Casper: ORDER entered. SCHEDULING ORDER.(Hourihan, Lisa) (Entered: 06/19/2012)
37 NOTICE of Appearance by Jennifer A. Serafyn on behalf of Alan Bersin, John T. Morton, Janet Napolitano (Serafyn, Jennifer) (Entered: 01/11/2013)
38 NOTICE of Withdrawal of Appearance by Barbara Healy Smith (Healy Smith, Barbara) (Entered: 01/11/2013)
39 NOTICE of Appearance by Marsha S. Edney on behalf of Alan Bersin, John T. Morton, Janet Napolitano (Edney, Marsha) (Entered: 03/05/2013)
40 Joint MOTION to Continue status conference to April 2013 by Alan Bersin, John T. Morton, Janet Napolitano.(Edney, Marsha) (Entered: 03/13/2013)
41 Judge Denise J. Casper: ELECTRONIC ORDER entered granting 40 Motion to Continue Status Conference set for 4/23/2013 03:15 PM in Courtroom 11 before Judge Denise J. Casper. (Hourihan, Lisa) (Entered: 03/15/2013)
42 ELECTRONIC Clerk's Notes for proceedings held before Judge Denise J. Casper: Status Conference held on 4/23/2013. Counsel report they are close to settlement. Counsel request a 30 day stay of the case. Stipulation of dismissal to be filed by 5/23/13. (Court Reporter: Debra Joyce at joycedebra@gmail.com.)(Attorneys present: Catherine Crump for the plaintiff. Marsha Edney for the defendants. (By phone)) (Hourihan, Lisa) (Entered: 04/24/2013)
44 STIPULATION of Dismissal by David House. (Crump, Catherine) (Entered: 05/23/2013)

 
 SETTLEMENT AGREEMENT
This Settlement Agreement is entered into by Plaintiff David House and Defendants, Janet Napolitano, Secretary, U.S. Department of Homeland Security, the Commissioner, U.S. Customs and Border Protection, and John Morton, Director, U.S. Immigration and Customs Enforcement, in their official capacities (hereinafter "Parties"). Whereas the Parties now mutually desire to resolve all of the claims asserted by Plaintiff in this action without the need for further litigation, and without any admission of liability, the Parties hereby accordingly agree to compromise, settle, and resolve all of the claims asserted by Plaintiff in this action on the following terms and conditions:
1. Within 7 days of signing this Agreement, the Parties will execute and cause to be filed, in the United States District Court for the District of Massachusetts, a Stipulation of Dismissal with prejudice in the form appended hereto at Exhibit 1.
2. Within 30 days of the execution and filing of the Stipulation of Dismissal, Defendants will provide to Plaintiff the documents listed in Appendix A.
3. The Parties agree that the following types of information may be redacted from the documents listed in Appendix A:
• Names, dates of birth, passport numbers, and US VISIT FIN for third-party individuals (e.g., individuals other than Mr. House.)
• Agent and employee names, phone numbers, and assignments. • Internal numbers assigned to specific files/codes . • Law enforcement sensitive information related to the nature and status of
government investigations; this information largely consists of the same 12-15 words that are repeated in the relevant documents. • Information pertaining to or relating to individuals other than Mr. House
4. Plaintiff, for himself and his administrators, heirs, representative, successors, or assigns, hereby waives, releases, and forever discharges Defendants, all of its agencies, components, offices, or establishments, and any officers, employees, agents, or successors, either in their official or individual capacities, of any such department, agency, component, office, or establishment, from any and all claims, demands, and causes of action of every kind, nature, or description, known to Plaintiff, which have been or could have been asserted in this action, or any other administrative or judicial proceeding against Defendants, arising out of or in connection with any event occurring prior to the date of this Agreement including, without limitation, events surrounding the November 3, 2010 border crossing ofthe Plaintiff and the detention of Plaintiffs devices.
5. Plaintiff, for himself and his administrators, heirs, representative, successors, or assigns, hereby waives, releases, and forever discharges Army CID and its employees, either in their official or individual capacities, from any and all claims, demands, and causes of action of every kind, nature, or description, known to Plaintiff, which have been or could have been asserted in this action, or any other administrative or judicial

proceeding against them, arising out of or in connection with events surrounding the November 3, 2010 border crossing ofthe Plaintiff and the detention of Plaintiffs devices.
6. Nothing in this Agreement or the affidavit affects the authority or discretion of the Defendants to engage in any screening, inspection, search, detention, or seizure on any basis whatsoever, and Mr. House may continue to be subject to lawful searches and inspections.
7. This Agreement is not and shall not be construed as an admission by Defendants of the truth of any allegation or the validity of any claim asserted in tlus action or the Defendants' liability therein. Nor is it a concession or an admission of any fault or omission in any act or failure to act; nor shall it be construed for any purpose whatsoever as an admission or presumption of wrongdoing on the part of Defendants. Nor shall any of the terms hereof be offered or received in evidence or in any way referred to in any civil, criminal, or administrative action (except in an separate action to enforce its terms).
8. The terms of this Agreement, and the attachment thereto, constitute the entire agreement of the Parties entered into in good faith, and no statement, remark, agreement, or understanding, oral or written, which is not contained therein, shall be recognized or enforced; nor does this Agreement reflect any agreed-upon purpose other than the desire of the Parties to reach a full and final conclusion of this action and to resolve the matter without the time and expense of further litigation.
9. This Agreement cannot be modified or amended except by an instrument in writing signed by the party to be charged therewith; nor shall any provision hereof be waived other than by a writing setting forth such waiver and signed by the party to be charged with such waiver.
10. This Agreement shall be binding upon and inme to the benefit of the Plaintiff and the Defendants and their respective successors, assigns, and personal representatives, including any persons, entities, departments, or agencies succeeding to the interests or obligations of the Parties.
11. Each person signing this Agreement, whether signing individually or on behalf of any person or entity, warrants and represents that he or she has full authority to so execute the Agreement on behalf of the party on whose behalf he or she so signs.
12. This Agreement, which may be signed in counterparts, shall take effect upon execution by all signatories below. This Agreement may be executed on copies sent by electronic mail with the same force and effect as an executed original of the same.
13. The Parties agree to bear their own costs and fees.
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APPENDIX A TO THE SETTLEMENT AGREEMENT 1. The TECS Lookout that formed the basis ofiCE's inspection of Mr. House on
November 3, 2010. 2. A letter from ICE to the agency or agencies with which the images were shared,
seeking technical and subject matter assistance pursuant to 19 U.S.C. § 507. 3. Six (6) Reports oflnvestigation, created by ICE, that provide detail related to
ICE's November 3, 2010 inspection of Mr. House, as well as the search and detention of his devices. 4. Two documents generated by Army CID relating to its inspection of Plaintiff's imaged data. Specifically, (1) the Summary of Investigative Activity and (2) the Digital Forensic Examination Notes. 5. An index that shows the chain of custody for both Mr. House's devices and the images that were created from the devices. The index will reflect which government personnel, identified by agency and position, accessed or had custody of the devices or images of the devices. The index will also indicate the dates on which Mr. House's devices or images were disclosed to these individuals. 6. Affidavits from ICE and Army CID establishing that all existing images of the devices have been destroyed and confirming that no documents contain data extracted, or information derived, from the contents ofthe devices or images. 7. Affidavit confirming that the lookout that was the basis for ICE's November 3, 20 10 inspection of Mr. House is no longer routinely accessible to customs officers and will not serve as the basis for automatic referrals to secondary inspection for Mr. House.
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IN WITNESS WHEREOF, the Parties hereto have personally signed this Agreement or have caused this Agreement to be signed by their duly authorized representatives intending to be bound.

Dated: 5/.n,2013

f>avid House

Dated:'S}2o, 2013

Stelson Edney, s States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N.W. Washington, D.C. 20001 Tel: 202-514-4520; Fax: 202-616-8470 Marsha.Edney@usdoj .gov Attorney for Defendant

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