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:
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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?
