There was an interesting U.S. District court ruling that determined U.S. Customs and Border Patrol agents cannot seize and inspect someone’s laptop computer without a warrant. Until the ruling, it was permissible for agents to do so within 100 miles of the border.
As an article at ITKnowledgeExchange.com observes, according to the American Civil Liberties Union (ACLU), as of 2006, more than two-thirds of the U.S. population lived within 100 miles of the border.
“Altogether, it meant that anyone in that area with a laptop could have that laptop seized without a warrant, at any time, taken to a lab anywhere in the U.S., have its data copied, and searched for as long as Customs deemed necessary. And despite [the ACLU’s] objections, the policy has largely been upheld,” the article said.
That’s just horrible law from a business perspective. Imagine that the government could seize laptop computers containing valuable proprietary information and clone the laptop before returning it to you. That’s not to say border patrol agents are corrupt but surely the temptation would exist for industrial spies to work in cahoots with bad law enforcement personnel. Surely some industrial spies have law enforcement background of some kind.
Jae Shik Kim from South Korea had been suspected of illegally selling aircraft parts to Iran. They seized his computer before he boarded a flight home, cloned it, and discovered discriminating emails that caused the government to charge him with crimes.
The District Court ruling came in the wake of the Riley v. California case. There the Supreme Court justices found that police couldn’t seize a person’s smartphone and use the data available through it without a warrant. The justices said, in effect, the issue was data is not always stored on a device and may simply be available through the cloud, which phone owners may not have control over.
In the laptop case, District Court Judge Amy Berman Jackson ruled, according to the article, “the potential amount of personal data in a laptop makes such a search more like a strip search than searching a handbag.” In effect, because a laptop can hold so much information, the police search is too broad as to guarantee protection against self-incrimination.
Nate Wessler, a First Amendment and privacy attorney for the American Civil Liberties Union in New York City, told ThinkProgress.org the opinion “puts the government on notice that the time for business as usual is over. That exhaustive searches of our digital devices raise Fourth Amendment questions and [law enforcement] can’t get away with searching those devices at their whim.”
It’s important to note that the ruling doesn’t instantly change the law of the land in the U.S. but it does help establish legal precedent. The article reports that Hanni Fakhory, senior staff attorney for the Electronic Frontier Foundation in San Francisco, said the opinion wasn’t “binding” like an Appellate or Supreme Court decision that requires other courts have to follow suit. “But it’s persuasive because it adds to the growing body of case law that says digital devices are different,” he said.
It’s worth exploring for a moment how Kim’s attorneys contested the original police action. As the website JDSupra.com reported, the seizure of the laptop was considered copacetic (my word – not the government’s) because the action took place at a border. In effect, the article said, it was the same as searching a piece of luggage or a cargo container. Yet, the search didn’t take place at the border. Plus, Kim wasn’t considered such a threat to national security that the government would detain him. Federal agents allowed him to board his flight sans his laptop.
Kim’s lawyers stated, “In this case, unfortunately, the government overstepped the boundaries established by Fourth Amendment of the Constitution, however the checks and balances imposed by the same foundational document proved to correct this error, and rightly so, as our laws continuously strive to adjust to the reality of rapidly evolving technology.”
Sure, it’s wordy, but it comes down to this. Your company’s laptops are free from seizure without warrants. Company personnel travelling across borders should be made aware of it. Of course, in full disclaimer, I’m not an attorney. Consider this a head’s up, though, if the issue ever comes up within your organization.