The government has voluntarily dismissed its case against Jae Shik Kim, the South Korean businessman for whom Ifrah Law obtained a motion to suppress in federal court. In 2012, Mr. Kim was stopped by federal agents as he tried to board a plane to South Korea from LAX. The government seized his laptop and copied his hard drive based on suspicion that he had engaged in illegal activity years earlier. The government indicted Mr. Kim based on evidence it found on the laptop relating to past transactions.
Everyone who has been through a security checkpoint at an airport knows that the government has wide latitude to conduct certain warrantless searches at the border without any suspicion of illegal conduct. However, the U.S. District Court for the District of Columbia concurred with Ifrah Law’s argument that the government’s latitude is wide, but it is not unbounded. In order to conduct a non-routine search of electronics at the border–including copying a hard drive for the government to conduct a later search unbounded in time and scope—the government must have reasonable suspicion that the owner is presently engaged or will imminently engage in illegal activity. An ongoing investigation of suspected past criminal activity is not a sufficient basis on which to perform such a search. To use a border search for that purpose is an illegal attempt to circumvent the warrant requirements imposed by the Fourth Amendment to obtain evidence in an ongoing investigation, and any evidence obtained in that manner cannot be used to convict the defendant.
The government understood that when the court suppressed the evidence obtained from Mr. Kim’s laptop, it did not have a case on which it could obtain a conviction. Shortly after the court granted Ifrah Law’s motion to suppress, the government filed an interlocutory appeal of the court’s order. The government hoped that the Court of Appeals would reverse the order and allow the government to present evidence obtained from the laptop in order to secure a conviction.
This week, the government reversed course. The government not only dropped its appeal on the suppression issue, but moved to dismiss the indictment entirely, resulting in an event all too rare in the criminal justice system—a dismissal of all charges against the defendant. The government’s action implicitly acknowledges restrictions on its authority to conduct non-routine searches at the border when there is no suspicion of present criminal activity. It is a big win not only for our client, but for the ongoing effort to preserve our right to privacy.
Photo: “LAX-International-checkin” by TimBray at en.wikipedia.
Developments in law are sluggish compared to the rapid rate of technological advancement, and courts must constantly apply old legal principles to technologies which were not contemplated at the time the laws were enacted. Recently, technology has been at the forefront of privacy rights debates, in light of revelations that the government has access to online communications, personal data storage and extensive monitoring via technology. The Fourth Amendment of the United States Constitution establishes a privacy right by prohibiting unreasonable search and seizure, but the extent to which that applies to technology is largely untested. Last week, a federal judge upheld this fundamental right as she ruled that our client’s rights had indeed been violated by an unreasonable search and seizure of a laptop computer conducted by the government.
U.S. District Court Judge Amy Berman Jackson granted a motion which we filed on behalf of our client, South Korean businessman Jae Shik Kim, to suppress evidence seized from his laptop as he departed the country from Los Angeles International Airport in October 2012. The decision severely cripples the government’s case alleging that Kim conspired to sell aircraft technology illegally to Iran, in United States of America vs. Jae Shik Kim, Karham Eng. Corp. (Crim. Action No. 13-0100 in the U.S. District Court for the District of Columbia).
The seizure of Mr. Kim’s laptop presents a unique challenge in an undeveloped area of law. The government claimed that because Mr. Kim’s laptop was seized at the border, it was free to search the computer without having any suspicion that he was presently engaged in criminal activity, the same way the government is free to search a piece of luggage or a cargo container. Yet anyone who owns a laptop, smartphone, tablet, or any other personal mobile device, knows that the breadth and depth of private information stored within these gadgets are intimately tied to our identities and should be entitled to a heightened level of privacy.
Judge Jackson, who understood this aspect of modern mobile devices, wisely rejected the government’s argument that a computer is simply a ‘container’ and that the government has an ‘unfettered right’ to search. In her memorandum opinion and order, she 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.”
In her decision, Judge Jackson also repeatedly referred to “reasonableness” as the “touchstone for a warrantless search.” She keenly balanced the government’s imperative to protect our borders with individuals’ privacy rights. Judge Jackson found that the nature of the search — including that the government conducted the search as Kim departed the country (and not as he entered) to gather evidence in a pre-existing investigation, and that it made a copy of the entire contents of Kim’s laptop for an “unlimited duration and an examination of unlimited scope” — amounted to an invasion of privacy and an unreasonable search and seizure.
While the search of Mr. Kim was technically a border search, his laptop was not searched at the airport. Instead, it was transported 150 miles to San Diego and held until government agents were able to find and secure information they deemed valuable to their case. In fact, Mr. Kim was deemed so little of a threat to national security that he was permitted to board his flight. Judge Jackson noted that if the government’s asserted justification for the search were to stand, it “would mean that the border search doctrine has no borders.”
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.