Court To Homeland Security: Wait, No, You Can't Just Take Anyone's Laptop At The Border To Bring Somewhere To Search

Legal Issues

from the just-like-a-cell-phone-isn't-a-pair-of-pants dept

The government — via the DHS and CBP — has long insisted it should be able to search whatever, whenever, within X number of miles of the border for national security reasons. The DOJ has routinely argued on its behalf, delivering non sequiturs like “Not searching your laptop doesn’t protect your civil liberties” with a straight face.

The security/liberty tradeoff has routinely suffered from the government’s insistence that its Fourth Amendment-skirting efforts are in the public’s best interest, even if the public isn’t nearly as interested in seeing the drawers of their personal computing equipment emptied onto the floor every time they stray too close to the “Constitution-Free Zone.”

The courts have generally upheld the government’s arguments, with a few exceptions. The Eastern District of New York basically said that if you don’t want your stuff looked through for no reason, don’t put so much stuff in your stuff — especially sensitive stuff. The presiding judge, Edward Korman, went so far as to compare the US to countries with severe civil rights issues, like Syria and Lebanon, and declared the US the “winner,” seemingly because citizens enjoy more rights once they move further inland.

The 9th Circuit Court went the other way, upholding the rights of citizens to be “secure in their papers” — something most laptops contain en masse. A laptop is not a suitcase and cannot be examined simply because it happens to be crossing the border. Electronic devices are not analogous to physical items travelers carry, no matter how much it benefits the government to treat cell phones as “pockets” and laptops as “suitcases.”

Now another court has taken on the government’s ridiculous assertions that a laptop is a suitcase/box of papers/open pickup bed full of personal information.

In this case, CBP seized a laptop from Jae Shik Kim, whom it suspected was involved with shipping certain items to China, which were then forwarded to Iran. DHS agents grabbed Kim’s laptop before he boarded an outbound flight to Korea. It then took this laptop from where it was seized to an office 150 miles away from where it was seized and dug through it for incriminating information. It found some, but this evidence has now been suppressed.

Judge Amy Jackson attacks the government’s ridiculous assertions within the first few paragraphs of the ruling:

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.

Jackson deals with both the treatment of personal electronic devices as “cargo” and the government’s reliance on a “Constitution-Free Zone” that apparently exists wherever the government says it exists.

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.

Unbelievably, the government actually used the Ninth Circuit Court’s decision finding suspicionless searches of electronics a violation of the Fourth Amendment in its defense of its search of Kim’s laptop. Adding this to its “container” assertion leads to some cognitive dissonance, which Judge Jackson points out:

The government argues first and foremost that a laptop is nothing more than a sort of container, and that the agents had full authority to scour its contents without the need for a warrant or a showing of any particular level of suspicion simply because the search was initiated at the border. […] But the government also suggests that a search which took place at LAX, involving a passenger traveling to and from California, should be assessed utilizing the Ninth Circuit precedent set forth in United States v. Cotterman…

In Cotterman, the Ninth Circuit announced that reasonable suspicion was required before investigators could undertake the forensic examination of a computer hard drive as part of a search that began as a cursory review at the border. In this case, the government argues both that no suspicion was necessary since this was an ordinary, reasonable border search that can be distinguished from the forensic examination that took place in Cotterman, and also that the necessary suspicion was present.

After examining and discarding a number of precedential rulings that don’t quite fit the situation at hand, Judge Jackson turns to the Supreme Court’s recent Riley ruling, dealing with warrantless searches of cell phones incident to arrest. Since a laptop has more in common with today’s smartphones than the address books, leather valises and pocket contents of yesteryear, Jackson applies the standards set by that ruling.

Applying the Riley framework, the national security concerns that underlie the enforcement of export control regulations at the border must be balanced against the degree to which Kim’s privacy was invaded in this instance. And as was set forth above, while 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.

Not only that, but the possible exception to the Riley ruling — the presumed waiving of Constitutional rights simply by entering/exiting the country — isn’t available to the government, thanks to its own actions.

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.

If the government allowed Kim to leave the country, it obviously didn’t have enough reasonable suspicion to search his laptop. This was a fishing expedition, partly predicated on some solid hunches, but that’s not enough to justify the level of intrusion the government subjected Kim to. These actions are also jarring in their dissonance: if Kim was considered “dangerous” enough to have his rights discarded for national security reasons, then it raises questions as to why he was allowed to travel halfway around the world unimpeded. The government again wishes to have it both ways: Kim is a suspected criminal but also free to leave the country — something most criminal suspects aren’t allowed to do.

All of this contradictory reasoning adds up to a suppression of the evidence the government worked so hard to obtain:

After considering all of the facts and authorities set forth above, then, the 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.

This ruling clearly highlights the asinine arguments justifying the government’s at-will, warrantless border searches. The DHS/CBP continues to assert electronics, containing thousands of documents and a wealth of personal information that normally wouldn’t be transported across borders in a physical fashion, should be treated as nothing more than “containers.” It doesn’t make this connection because it’s obtuse. It makes this connection because it wants as much unfettered access as it can get.

Filed Under: 4th amendment, amy jackson, border search, cbp, computers, dhs, jae shik kim, laptops