A federal court this month found that federal agents lacked authority to conduct a warrantless search of a defendant’s laptop seized at an airport, rejecting the government’s argument that it has unfettered authority to search containers at the border to protect the homeland.  The court distinguished laptops from handbags due to their “vast storage capacity” and found that there was little or no reason to suspect that “criminal activity was afoot” at the time the defendant was about to cross the border.  Rather, agents confiscated the laptop before the defendant boarded his plane at Los Angeles International Airport as part of a pre-existing investigation into the defendant for violation of export control laws.  The agents then sent the laptop to San Diego for extensive forensic imaging and searches over an indefinite period of time.  The court held that this amounted to an unreasonable invasion of the defendant’s right to privacy.

The court relied in part on the U.S. Supreme Court’s recent decision in Riley v. California, 134 S. Ct. 2473 (2014), explaining that Riley “made it clear that the breadth and volume of data stored on computers and other smart devices make today’s technology different in ways that have serious implications for the Fourth Amendment analysis . . . ”

It would not be surprising for the government to appeal the ruling in view of the importance of the border exception to the Fourth Amendment’s search warrant requirement.

Although the decision is grounded in the Fourth Amendment and therefore generally applicable to searches conducted by the government, courts consider Fourth Amendment precedent when evaluating searches by private corporations acting as instruments or agents of the government.  See, e.g.Skinner v. Ry. Labor Executives Ass’n, 489 U.S. 602, 614 (1989) (Fourth Amendment applied to drug and alcohol testing required by private railroads in reliance on federal regulations); United States v. Ziegler, 474 F.3d 1184, 1190 (9th Cir. 2007) (Information Technology department representatives for private company who worked with Federal Bureau of Investigation and seized copies of employee’s hard drive acted as “de facto government agents,” thereby implicating the Fourth Amendment); United States v. Reed, 15 F.3d 928 (9th Cir. 1994) (Fourth Amendment applied to hotel employee’s warrantless search of defendant’s room in light of the presence of police lookouts and the employee’s intent to help police gather proof of narcotics trafficking).  Therefore, companies should take notice of this decision and evaluate the extent to which the court’s rationale may be applied in the private employer context.

The case is United States v. Jae Shik Kim, et al., No. 1:13-cr-00100-ABJ (D.D.C. 2013).  The decision is at Docket Entry 42.