SurveillanceComputer searches at border subject to case-by-case reasonableness: Court
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.
