Author commented on CBP’s position for digital equipment border searches back in 2008. Since then, CBP came out with amended version for digital equipment search conduct in the CBP Directive 3340-049. The directive states that searches, including those of electronic derives, can be made “without individualized suspicion.” Id. at ¶¶ 5.1.3, 5.1.4. DHS Special Agent Kevin Hamako, who may or may not have read the CBP directive, also had “an understanding that no suspicion was required to conduct a border search of any items * * * including electronic devices.” U.S. v. Kim, 7 (D.C. 2015). But, the D.C. district court decided that Agent Hamako misunderstood the “no suspicion” doctrine in the context of digital equipment border searches.
DHS agent was following up a lead that allegedly implicated one businessman’s involvement with exports of controlled items without securing valid licenses around 2008-2009. In 2012, DHS agent intercepted the businessman at the airport and seized his computer, allowing the businessman to exit the United States. The seized computer was sent to the another DHS facility, where the contents of the hard drive were copied and examined. The computer was eventually returned to the businessman, but based on the examined content, DHS agent secured the search warrant with government indictment followed.
Fourth Amendment of the U.S. Constitution protects people “against unreasonable searches and seizures” by our government. To that end, government is generally required to obtain a warrant. In the context of DHS and CBP, however, government agents are excused from seeking a warrant because of “border search warrant exception.” Warrantless border search doctrine is well recognized, but subject to limitations: warrantless search must be reasonable.
Kim court found that agent’s warantless search was unreasonable (therefore allowing evidence to be suppressed), among other things, for the following reasons:
- Agent was investigating past illegal exports, and was unable to prove that businessman’s illegal export activities were ongoing;
- Agent found no other corroborating evidence of illegal exports during businessman’s search of effects in the airport;
- Agent did not inspect the computer in the airport, but merely seized it;
- Businessman was on a routine trip at the time the computer seizure took place;
- Agents conducted “forensic search” of the computer prior to obtaining the warrant. Forensic search of an imaged computer is as invasive as a strip search, and therefore requires reasonable suspicion.
- Digital search is not the same as the physical objects search, requiring balancing act between legitimate government interests and individual’s privacy.
- After securing the search warrant, agents did not conduct any searches.
Kim court concluded that privacy concerns of a businessman outweighed security concerns of the government. This means that the CBP Directive 3340-049, permitting searches of electronic devices without individualized suspicion, electronic information seizure and copying policy, as well as, detention of digital equipment may be outdated.