Privacy

Federal Judge Rejects Warrantless Search of Laptop Seized at Airport

Doesn't a traveler's computer deserve as much protection as an arrestee's cellphone?

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Last year in Riley v. California, the Supreme Court unanimously ruled that police generally need a warrant to examine the contents of an arrestee's cellphone. The Court noted that such an examination reveals much more information and therefore entails a much greater intrusion on privacy than the usual "search incident to arrest," which is aimed at finding weapons that a suspect might use against police or evidence he might conceal or destroy. In light of that difference, the Court said, "treating a cell phone as a container whose contents may be searched incident to an arrest" makes little sense.

The Court's recognition that electronic devices are more than mere containers raised new questions about another exception to the warrant requirement: the "border search." Should the government be free to search electronic devices at will merely because their owners are entering or leaving the country? A recent decision by a federal judge in Washington, D.C., suggests the answer is no.

The case involves Jae Shik Kim, a Korean businessman who was suspected of helping Iran evade U.S. trade restrictions. Based on those suspicions, a Department of Homeland Security agent planned to intercept Kim and seize his laptop computer as he boarded a flight from Los Angeles to Seoul in December 2012. Incriminating email on the laptop became the basis for charges against Kim, who argued that the evidence was obtained illegally.

Last week U.S. District Judge Amy Berman Jackson agreed, rejecting the government's position that it needed neither probable cause nor reasonable suspicion, let alone a warrant, to seize and analyze the computer, since Kim was carrying it while traveling to another country:

Wikipedia

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.

In reaching that conclusion, Jackson noted that the Supreme Court in Riley "made it clear that the breadth and volume of data stored on computers and other smart devices make today's technology different in ways that have serious implications for the Fourth Amendment analysis." That decision showed "the Fourth Amendment is not necessarily satisfied by a simplistic likening of a computer to a searchable 'container.'"

Jackson's decision is limited to the particular facts of this case, where the search was "qualitatively and quantitatively different from a routine border examination" and therefore "unreasonable given the paucity of grounds to suspect that criminal activity was in progress." But Riley's logic seems to go further. If a warrant is generally required to search an electronic device whose owner has been arrested, shouldn't that also be true of an electronic device whose owner is merely crossing an international boundary? 

[via Ars Technica]

NEXT: A Man Took a Selfie in the Toy Aisle of Target. Obviously, He Must Be a Predator.

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  1. Finally, someone in favor of the Fourth.

    Thank you.

    Oh, and you government goobers, that probably could never a job in the private sector: Up yours.

  2. tldr version: Government officials, when they seize your computer at the border, will go through it at the border checkpoint, so they won’t be accused of doing the search too far in time and space away from the checkpoint.

    1. Well, since the court has already approved of “border stops” in areas that cover 2/3 of the U.S. population, they may not have to.

      Small victory, but I suppose at this point in our legal circus, I’m happy to get any victories at all.

  3. Did the government seize the alt text? That picture is dying for some alt text.

  4. Thank you for upholding the Constitution U.S. District Judge Amy Berman Jackson. Appreciate it.

  5. The case involves Jae Shik Kim, a Korean businessman

    If they’re going to give a damn foreigner 4th amendment protections, then I want them too, damnit.

  6. But to apply those principles under the facts of this case would mean that the border search doctrine has no borders.

    Government: “And?”

  7. Since they have stopped even trying to wear the mask, can we really say the mask has slipped anymore?

    Retiring prof, who looks white to me says white males should be exterminated.

    http://politistick.com/hateful…..e-to-live/

    1. This… seems fake.

      1. It’s not. Google the guy. He is real and that insane and evil.

      2. It’s not. Google the guy. He is real and that insane and evil.

        1. Perhaps, but from the comments:

          You do realize that “Diversity Chronicle” is a satire site, right? And that it’s a fake article?

          And from the Diversity Chronicle website: The original content on this blog is largely satirical.

          1. Okay then. You can’t tell anymore

            1. True. It’s why places like The Onion have to work harder.

              I haven’t read any of this guys stuff, but I do know that How the Irish Became White is supposed to be pretty good. That’s always the tricky thing with academia: you have profs making idiotic public statements but it doesn’t necessarily mean their written work is all terrible.

    2. This is the “logical”conclusion for the anti-western pseudo-intellectual signaling game. They’ll never actually do it, they’re far too cowardly, but this is the ultimate in male feminist, anti-christian, progderp.

      1. If we were some small unarmed minority group I have no doubt they would try that. They already blame us for all the worlds sins, and you know what you do with a scapegoat after you put all your sins on it.

      2. I’ll add to my previous comment that not only are the progs creating a lot of anti-white, anti-christian, etc hatred, but they are also creating the opposite as well. How long do you think a white kid growing up today can listen to this type of garbage they teach in his schools, and in his colleges, before he lashes out and joins one of the many neo-nazi groups out there because they think they’re the only groups standing up for him?

  8. The Court noted that [cellphone] examination reveals much more information and therefore entails a much greater intrusion on privacy than the usual “search incident to arrest,” which is aimed at finding weapons that a suspect might use against police or evidence he might conceal or destroy.

    Bullshit. If a camera or videos aren’t “weapons that a suspect might use against police”, I don’t know what are.

    /sarc

  9. The government points to its plenary authority to conduct warrantless searches at the border.

    Its right there in the Bill of Rights:

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, except at border crossings, or within 150 miles of the border and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seizedexcept at border crossings, or within 150 miles of the border.

    1. Well now that you posted on the internet it becomes an actual fact.

  10. I am hopeful, but this narrowly tailored decisions like this leaves me cynical:

    Jackson’s decision is limited to the particular facts of this case, where the search was “qualitatively and quantitatively different from a routine border examination”

    I guess planned targeting of individuals for search with the rationale of foiling a crime whose case you fail to prove–the later being the deciding factor:

    “unreasonable given the paucity of grounds to suspect that criminal activity was in progress.”

    is different from nondiscriminatory rifling through your stuff, which apparently is still ok without a warrant. It seems like she was careful in her decision not to overturn or conflict with other cases. Even if they do need a warrant, they can always seize your device and let you leave without it. Security researcher and leaker Jacob Applebaum has documented this many times (I assume he’s a “person of interest” and probably on some DHS list)

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