Korean businessman Jae Shik Kim was ready to board a flight from Los Angeles International Airport to South Korea. But a special agent of the Department of Homeland Security (DHS) searched the luggage Kim had checked. (The agent didn’t find anything of particular note.) Then, on the jetway between the gate and the airplane, the agent stopped Kim, who was boarding. The agent seized Kim’s laptop “pursuant to a border search,” then left the traveler to depart for his destination. (United States v. Kim, — F.Supp.3d —-, (D.D.C., 2015).)
The next day, the special agent gave the laptop to another agent, this one a forensic specialist in San Diego. The specialist copied the hard drive, returned the laptop to the special agent, and then got to digging. (Kim got the laptop itself back about a week after its confiscation.) A keyword search with specialized software turned up thousands of files, which the specialist burned onto a DVD and gave to the special agent.
Spending several days reviewing the DVD, the agent found incriminating emails. Those emails became part of the evidence against Kim in a prosecution for conspiring to illegally sell aircraft technology to Iran.
No Random Search
This, of course, wasn’t a random border search. DHS investigators had months earlier gathered information suggesting that Kim had been involved in a shipment of “controlled articles” to Korea that were forwarded to customers in Iran. The aforementioned special agent had planned to search Kim’s laptop the next time the businessman was in the States.
The above series of events left federal District Judge Amy Berman Jackson of the District of Columbia to consider whether to grant Kim’s motion to suppress the evidence of the emails. On May 8 the judge found that—even though the laptop was seized at the border, where the government has greater search-and-seizure power—“the invasion of the defendant’s right to privacy in his papers and effects” was not reasonable “under the totality of the circumstances.”
Among the reasons for the ruling were:
- the fact that the laptop search took place 150 miles away from LAX, long after Kim had left the country
- the government taking unlimited time for “an extensive examination of the entire contents of Kim’s hard drive,” and
- the judge’s finding of little—if any—indication that a crime was in progress as Kim was leaving the country.
(The judge also found it relevant that the computer was leaving rather than entering the country.)
Searching for Answers
The decision highlights an uncertain area of law: The extent to which the government can lawfully search digital devices at international borders. What kind of search may they conduct without a legitimate reason to suspect a traveler of present wrongdoing? This is the kind of question courts, not having the benefit of any Supreme Court ruling on the issue, are actively trying to solve.
(For more on this subject, see Laptop Searches at International Borders.)