House’s suit against US marches forward

House’s suit against US marches forward

Attorneys have agreed upon a schedule in House v. Napolitano, where David M. House is suing the federal government because they confiscated his laptop at a border crossing and held it for 49 days. The case is in Massachusetts federal district court.

House is a Boston area computer programmer who was employed by MIT at the time of the seizure, in November of 2010; he is the founder of the Bradley Manning Support Network.

Fact-based discovery should complete by March 2013, and expert witness discovery by June of 2013. Discovery is the process of obtaining evidence from the opposing party prior to trial.

Also, as required by the court’s local rules, House proposed a settlement to the government earlier this month. House’s attorney, Catherine Crump of the American Civil Liberties Union (ACLU), was uncertain whether she was permitted to disclose the settlement offer publicly.

The government will present its response to the settlement offer at a scheduling conference on Monday, June 18, 2012. Judge Denise J. Casper will also approve or alter the proposed schedule at that conference, and issue a formal scheduling order.

House filed his suit in May of 2011, but it stalled until April of 2012 as the court determined to dismiss the case at the government’s request. Casper decided against dismissal in March of 2012.

One current case that may affect House is United States v. Cotterman, which is being re-argued on appeal before the Ninth Circuit Court of Appeals next week Tuesday, June 19. This appeal is an en banc hearing, meaning it is before the chief justice and ten other judges, rather than a three-judge panel, as it was before.

In Cotterman, Howard W. Cotterman’s laptop was searched, child pornography was found in unallocated disk space, and he was arrested. (Unallocated disk space is free space not assigned to any file; it may include previously deleted files or deliberately hidden information.)

An Arizona court found in favor of Cotterman and suppressed the evidence, but the Ninth Circuit reversed that decision. Now the Ninth could reverse itself again.

The two judges who voted against him are not on the new randomly-selected panel, but the one judge who voted for him is.

Since the last decision in Cotterman, the Supreme Court unanimously decided United States v. Jones, ruling that warrantless GPS tracking violated the 4th amendment. Five of the court’s judges explained that the practical protections of privacy in the pre-computer times were privacy’s greatest protections.

According to court filings, attorneys arguing for Cotterman intend the same argument — that searching the hundreds of gigabytes that a laptop holds would never have been practical in the pre-laptop age, and thus they should not be permitted in the modern era either.

Cotterman’s side will be argued by William J. Kirchner, Cotterman’s attorney, as well as Christopher T. Handman, who represents The Constitution Project, a civil liberties advocacy group. Kirchner, who has never argued an en banc rehearing before, said Handman was terrific and that “he’s a really great lawyer who is going to add a lot of perspective.”

John A. Hawkinson