Issues of Privacy Rights Pertaining to Computers and other Electronic Devices Winding Their Way Through the Courts
In a separate web posting I detailed the ruling and background pertaining to Riley v. California, a 2014 U.S. Supreme Court decision which said that police cannot search the contents of a cell phone without a judicial warrant. The ruling generally was viewed by legal pundits and others as a victory for individual privacy rights, but other Fourth Amendment issues related to high-tech devices remained up in the air.
Following the decision, legal questions surrounding warrantless police searches of other electronic tools such as laptop and desktop computers have been winding through the lower courts, potentially paving the way for the high court to decide those matters.
In May, a federal judge in Washington, D.C., ruled that federal agents do not have unlimited power to search laptop computers and other high-tech devices at U.S. border exit points (including airports serving international travel) – unless they have a warrant. U.S. District Judge Amy Berman Jackson, citing the Riley case, said that a federal agent’s search of a Korean businessman Jae Shik Kim’s laptop without a warrant was unreasonable as it was supported by little suspicion of ongoing or imminent criminal activity. The level at which Kim’s privacy was invaded had to be weighed against the government’s national security interests, just as the high court did in the Riley case, Jackson said.
“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 wrote.
Investigators found data in the laptop suggesting that the businessman was violating U.S. economic sanctions against Iran. The judge’s ruling tossed out the evidence. Kim’s lawyer noted that the ruling won’t mean that the government will be prevented from protecting U.S. borders. Warrantless searches, however, must be “designed to thwart crimes that are afoot at the border crossing,” he wrote.
“This is a really interesting and unresolved area of the law right now because, as often happens, taking 17th Century concepts of privacy rights and trying to apply them to 21st Century technology,” said his lawyer.
But in a contrary ruling, another federal judge rejected a motion to suppress evidence in a similar case involving a man whose computer was seized at the border without a warrant. (Coincidentally, that man also was accused of violating economic sanctions against Iran.)
That judge, referring to the case on which Jackson ruled, said the two cases were different because there was nothing about Kim’s particular travel plans that would arouse reasonable suspicion, while in the second case, the traveler reportedly aroused suspicion by attempting to carry multiple devices onto the plane. The multiple electronics appeared to be “inconsistent with just personal use while traveling.”
These cases or similar ones appear to be steering a course toward a future Supreme Court docket within the next few years. For those who are concerned about constitutional protections of privacy rights, the sooner the high court rules on these matters, the better.
About the Attorney
Elizabeth B. Carpenter is a criminal defense attorney in New Orleans.