A federal judge determined the search of a traveler’s laptop without a warrant as he was leaving the country was unreasonable, in a ruling that could derail the government’s long-held search criteria for international travelers.
Nate Wessler, a First Amendment and privacy attorney for the American Civil Liberties Union in New York City, said Friday’s opinion “puts the government on notice that the time for business as usual is over. That exhaustive searches of our digital devices raise Fourth Amendment questions and [law enforcement] can’t get away with searching those devices at their whim.”
And while it’s “not quite the first” of its kind in terms of border search rulings, “it helps spin out the message of Riley that while Kim deals with a search at the border rather than on the street within the U.S., the message is the same. Our laptops and cellphones carry such as sensitive array of details of our lives, they cry out for more robust regulation under the Fourth Amendment.”
In Friday’s ruling, Judge Amy Berman Jackson of the U.S. District Court of the District of Columbia allowed defendant Jae Shik Kim to suppress key evidence the government found after searching his laptop at Los Angeles International Airport.
Border patrol agents with the Department of Homeland Security suspected Kim of illegally selling aircraft parts to Iran and seized his computer before allowing him to board a flight home to Korea in December 2012. The government cloned Kim’s hard drive, shipped it off to a forensic lab in San Francisco, and searched it for keywords, uncovering a series of “incriminating emails” that formed the basis for the government’s case against Kim.
The court concluded the government not only conducted an unreasonable search, but further violated the Fourth Amendment by shipping the computer to a second location where they continued the extensive search:
The government points to its plenary authority to conduct warrantless searches at the border. It posits that a laptop computer is simply a “container” that was examined pursuant to this authority, and it submits that the government’s unfettered right to search cargo at the border to protect the homeland is the beginning and end of the matter.
But to apply those principles under the facts of this case would mean that the border search doctrine has no borders. The search of the laptop began well after Kim had already departed, and it was conducted approximately 150 miles away from the airport. The government engaged in an extensive examination of the entire contents of Kim’s hard drive after it had already been secured, and it accorded itself unlimited time to do so.
There was little or no reason to suspect that criminal activity was afoot at the time Kim was about to cross the border, and there was little about this search — neither its location nor its scope and duration — that resembled a routine search at the border. The fundamental inquiry required under the Fourth Amendment is whether the invasion of the defendant’s right to privacy in his papers and effects was reasonable under the totality of the circumstances, and the Court finds that it was not.
Hanni Fakhory, senior staff attorney for Electronic Frontier Foundation in San Francisco, said the opinion wasn’t “binding” like an Appellate or Supreme Court decision that requires other courts have to follow suit. “But it’s persuasive because it adds to the growing body of case law that says digital devices are different,” he said.
That means the next time the government searches someone’s phone, tablet or laptop on suspicion of criminal activity, a defense attorney can use the case as an example of an invalid forensic search, a deeply invasive search that reveals old emails, call records and other information that can’t be obtained just browsing through one’s device.
Device searches are an increasingly contentious legal territory where courts and law enforcement struggle to differentiate rules for physical and digital worlds. The Supreme Court ruled last year in Riley v. United States that law enforcement cannot search a cell phone during an arrest without a warrant.
Weeks after the Supreme Court’s decision, a Maryland District Court decided U.S. v. Saboonchi, a border search case where the government overstepped its authority when it seized and forensically searched an Iranian man’s iPhone, Android phone and USB drive on his way back from Niagara Falls, Canada in 2012.
The Maryland court determined that device searches at the border are exempt under the Fourth Amendment but cautioned law enforcement to have reasonable suspicion before searching a device. Ali Saboonchi was found guilty of conspiracy and illegally trading goods with Iran and was sentenced to two years in prison earlier this year.
Before the Supreme Court’s decision, the U.S. Court of Appeals for the Ninth Circuit ruled in 2013 that law enforcement need reasonable suspicion before searching electronic devices at the border in the nine states and Guam under the court’s jurisdiction. That year, U.S. District Court for the Eastern District of New York endorsed laptop border searches, citing the rarity of occurrences meant privacy violations were a low risk.
Searching electronic devices at the border is not a new problem. Citizen Four producer and privacy advocate Laura Poitras, who now lives in privacy-friendly Germany, has been open about being detained at the U.S. border and having her devices confiscated.
David House, a researcher programmer, was stopped and had his laptop seized by DHS agents on his way back from Mexico in 2010. House was put on the DHS watch list for openly supporting military whistleblower Chelsea Manning, and sued the government for violating his First and Fourth Amendment rights.
Wessler said the next step comes if the government appeals the D.C. District Court’s decision, which could lead the case to the Supreme Court for a final decision that applies to all jurisdictions.
“Not many courts have had a chance to rule on it — relatively new technology and law enforcement try to keep these searches under wraps and from judicial review — they look for persuasive opinion. I expect the next judge to look at this and the other cases to make a ruling,” Wessler said. “We really need appellate courts to coalesce and the supreme court to set the standard.”