Computer searches at border subject to case-by-case reasonableness: Court

Computer searches at border subject to case-by-case reasonableness: Court

Published 3 June 2015

 

A Washington, D.C. District Court has upheld a ruling that U.S. intelligence and border security agents must have “reasonable suspicion” to seize and search any computer or storage media at the border – especially if the computer and storage media belong to an individual about to leave the country. A South Korean businessman, suspected of buying missile parts for China, was stopped at LAX on his way back to Korea. He was allowed to leave, but his laptop and storage media were seized by agents. Judge Amy Berman Jackson stressed that in border searches, the government has a more compelling interest in searching things that are being brought into the country than things that are about to leave the country. Kim’s lawyers asked the judge to suppress any incriminating evidence found on Kim’s laptop during a warrantless search conducted by the case agents, and she granted to lawyers’ motion. DHS says it will appeal her decision.

A Washington, D.C. District Court has upheld a ruling that U.S. intelligence and border security agents must have “reasonable suspicion” to seize and search any computer at the border.
As theWashington Post reports, Judge Amy Berman Jackson ruled in United States v. Kim that every computer search at a U.S. border must be justified under these circumstances.
The defendant is Jae Shik Kim, a South Korean businessman with ties to China who was found to have been involved in the purchase of U.S. missile parts three to four years ago.
When he was at the Los Angeles International Airport, waiting to board a flight to South Korea, law enforcement agents seized his lap top and several storage media. The agent assigned to the case spent twelve days going through 5,900 files stored on Kim’s DVD – searching for specific keywords which included “QA-2000, QA-3000, G-2000, 7270A, accelerometers, gyroscope, angular, sensor, Honeywell, Endevco, Northrop, Grumman, ITAR, sensitive, export, shipment, military, aircraft, missile, satellite, ballistic and nuclear.” The case agent found e-mails which confirmed that Kim had purchased missile parts which were subject to the Export Control Act.
The agent then sought a search warrant to conduct further search of the files and images stored on the lap top and the storage media to see whether Kim had violated other export control laws. A judge signed the warrant, but the agent never executed it. Instead, the case was charged based primarily on the warrantless analysis of the DVD, which contained the incriminating e-mails.
Kim’s lawyers argued that the seizure of his laptop was unwarranted and his fight to suppress any information gleaned from the laptop and the storage media was thus warranted.
“[T]he Court finds, under the totality of the unique circumstances of this case, that the imaging and search of the entire contents of Kim’s laptop, aided by specialized forensic software, for a period of unlimited duration and an examination of unlimited scope, for the purpose of gathering evidence in a pre-existing investigation, was supported by so little suspicion of ongoing or imminent criminal activity, and was so invasive of Kim’s privacy and so disconnected from not only the considerations underlying the breadth of the government’s authority to search at the border, but also the border itself, that it was unreasonable.” Said Judge Jackson, “Therefore, the motion to suppress the evidence … will be granted,” Judge Jackson wrote.
Judge Jackson cites the ruling of Riley v. California, a cell-phone search case, in support of her new ruling.
Judge Jackson stressed that in the case of border searches, the government has a more compelling interest in searching things that are being brought into the country than things that are about to leave the country.
“The government’s power at the border arises out of the sovereign’s right and need to protect its territorial integrity and national security,” she said. “[S]earches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons crossing into this country, are reasonable simply by virtue of the fact that they occur at the border … .While there is authority that states that the government’s broad authority at the border extends to those exiting the country as well as to those coming in…the justifications for the exception to the warrant requirement are generally framed in terms of threats posed at the point of entry… None of those significant governmental interests in monitoring what comesin to the country apply in this case.”
The judge was not impressed with the government’s claim that Kim was a security threat, and that seizing his laptop and storage media at LAX could properly be described as “border search”:

[T]he Court cannot help but ask itself whether the examination in this case can accurately be characterized as a border search at all. And if not, it surely cannot be justified by the concerns underlying the border search doctrine.

It is true that Kim’s laptop was seized at the border — in this case, LAX — but it was not even opened, much less searched, there. It was transported approximately 150 miles to San Diego, it was retained for a limited period of time, and eventually, the laptop was returned. Meanwhile, there was so little of note found in Kim’s luggage, and he posed so little of an ongoing threat to national security, that he was permitted to board his flight.

There are questions about the seriousness of the security threat Kim was posing, the judge said, but there is no denial that the degree of privacy invasion was great:

[W]hile the immediate national security concerns were somewhat attenuated, the invasion of privacy was substantial: the agents created an identical image of Kim’s entire computer hard drive and gave themselves unlimited time to search the tens of thousands of documents, images, and emails it contained, using an extensive list of search terms, and with the assistance of two forensic software programs that organized, expedited, and facilitated the task. Based upon the testimony of both Special Agent Hamako and Special Agent Marshall, the Court concludes that wherever the Supreme Court or the Court of Appeals eventually draws the precise boundary of a routine border search, or however either Court ultimately defines a forensic – as opposed to a conventional – computer search, this search was qualitatively and quantitatively different from a routine border examination, and therefore, it was unreasonable given the paucity of grounds to suspect that criminal activity was in progress.

The judge said that she concluded that “this search was qualitatively and quantitatively different from a routine border examination” because the agents in charge did not bother to execute the warrant they had sought and received after going through Kim’s 5,900 stored files. Judge Jackson pointed that the government’s failure to execute the warrant it had obtained implicitly shows that the warrantless search, which preceded the request for a warrant, was extremely invasive. It stands to reason that if the warrantless search had not been complete, the agents would have carried out the warrant they had obtained so they could conduct a more thorough search. But they did not – meaning that the earlier warrantless search was extremely invasive, and thus unreasonable.
The Department of Homeland Security (DHS) is expected to take the case to the D.C. Court of Appeals.