By Zoe Tillman, From Legal Times

Korean businessman wins Fourth Amendment challenge in D.C. federal court

Federal agents do not have unlimited power to search laptops and other electronic devices without a warrant at the border, including airports, a federal judge in Washington said.

U.S. District Judge Amy Berman Jackson rejected prosecutors’ arguments that a laptop was like any other container that could be searched at the border without a warrant. The “border search doctrine” had limits when it came to electronic devices, Jackson wrote.

“Given the vast storage capacity of even the most basic laptops, and the capacity of computers to retain metadata and even deleted material, one cannot treat an electronic storage device like a handbag simply because you can put things in it and then carry it onto a plane,” Jackson said.

Jackson is the latest judge to confront warrantless searches of electronic devices since the U.S. Supreme Court’s ruling last year in Riley v. California. In Riley, the justices said police generally must get a warrant before searching a cellphone, acknowledging the vast amount of personal information those devices hold.

Citing Riley, Jackson said she would apply the same approach as the high court and weigh the degree to which defendant Jae Shik Kim’s privacy was invaded when his computer was searched against the government’s national security interests. Kim, a Korean businessman, was traveling home from the United States in December 2012 when a U.S. Department of Homeland Security special agent seized his laptop and sent it away for a forensic examination.

She wrote:

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.

Jackson tossed out “incriminating” evidence investigators discovered stored in the laptop, which prosecutors used to charge Kim with violating U.S. economic sanctions against Iran.

Kim’s lawyer, David Deitch of Ifrah Law in Washington, said Jackson’s ruling “made clear that the government will still have all its rights to protect the border if it is doing searches that are designed to thwart crimes that are afoot at the border crossing.”

“This is a really interesting and unresolved area of the law right now because, as often happens, we’re taking 17th century concepts of privacy rights and trying to apply them to 21st century technology,” Deitch said.

A spokesman for the U.S. attorney’s office in Washington said they were reviewing the ruling.

Jackson’s decision was the second in the past year in the D.C. federal trial court to address warrantless searches of laptops at airports.

In December, U.S. District Judge Rudolph Contreras rejected a motion to suppress evidence filed by another defendant charged with sanctions violations, Shantia Hassanshahi. Hassanshahi claimed the government lacked reasonable suspicion to seize and search his computer. He also argued the search was unlawful because investigators discovered his phone number using a secret law enforcement database.

Contreras found there was reasonable suspicion to search Hassanshahi’s computer. Law enforcement had reason to believe Hassanshahi was doing business in Iran, the judge said, including an earlier federal investigation into his activities involving Iran, his past travels there and the fact that he was carrying multiple electronic devices that appeared “to be inconsistent with just personal use while traveling.”

Jackson said that Kim’s case was different from Hassanshahi’s because “there was nothing about Kim’s particular travel plans that would arouse suspicion; he was returning to his home in Korea and he was known to have business operations within the United States.”

The next hearing in Kim’s case is scheduled for May 18.

IMAGE: Amy Berman Jackson. Photo: Diego M. Radzinschi/NLJ

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