Evan Williams Trial Attorney Computer Crime and Intellectual Property Section United States law enforcement authorities have broad power to conduct warrantless searches of persons, baggage, objects, vehicles, and vessels at this country’s borders. Coincident with this authority, border officials track the entry and exit of all persons crossing the nation’s borders. In the case of air travelers, officials have authority to access to the airlines’ flight reservation system, allowing them to determine in advance when an individual will be crossing the border. Border search authority, which finds ample support in case law and statute, is based in broad part upon the sovereignty of the United States, the need to insure the security of its citizens, and the power to enforce customs duties. Even before passage of the Constitution, customs authorities were given “full power and authority” to conduct a warrantless search of any ship or vessel which might be carrying goods subject to duty. Act of July 31, 1789, ch. 5, 1 St. 29. Since then, the Supreme Court and lower courts have repeatedly affirmed the government’s power to conduct border searches. See United States v. Villamonte- Marquez, 462 U.S. 579, 585 (1983) (border searches have long “historical pedigree”). Border search authority has proved especially useful for investigating violations of the Economic Espionage Act. 18 U.S.C. §§ 1831-32.
The targets of these investigations often attempt, on short notice, to leave the United States with misappropriated trade secrets or associated information. In fact, the target’s sudden travel plans may be precisely what alerts the trade secret owner to the theft. As a result, the owner’s first opportunity to apprise law enforcement of the suspected theft is when the target is literally on the way to the airport, leaving little or no time to obtain a search warrant. Similarly, the targets may return to the United States after an indefinite stay abroad. It can be extremely helpful for law enforcement to be able to both track the target’s arrival and to search her belongings. See, e.g., United States v. Fei Ye, 436 F.3d 1117, 1119 (9th Cir. 2006) (noting that the defendants were arrested “while attempting to board a flight to China at the San Francisco International Airport” and alleged trade secrets were “simultaneously seized . . . from defendants’ personal luggage, homes, and offices”); United States v. Jin, Case No. 08 CR 192 (N.D. Ill. Dec. 9, 2008) (indictment alleging that the defendant “traveled to O’Hare International Airport in Chicago, Illinois, for the purpose of departing to China” and “had in her possession over 1,000 electronic and paper documents belonging to Company A containing technical information, certain of which were marked as containing confidential and proprietary information belonging to Company A”) Id. at 3; United States v. Meng, Case No. CR 04-20216-JF (N.D. Cal. Aug. 29, 2007) (plea agreement factual basis stating that after the defendant arrived in the United States “at the Minneapolis St. Paul International Airport on a flight originating from Beijing, the People’s Republic of China,” with his laptop computer, “My computer was initially viewed by U.S. Customs & Border Protection (CBP) Officers at the airport who noticed that Quantum3D properties were on my laptop. A subsequent examination of my computer revealed the Mantis 1 S.5, and the source code of viXsen embedded in the source code of Mantis, as well as other Quantum3D programs and materials that I had misappropriated from Quantum3D.”) This article is designed to help any prosecutor who is contemplating a border search or assessing whether evidence obtained from one is admissible. First, it will lay out the basic legal principles of border searches. Second, it will summarize the border search policies of Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP), the main agencies tasked with protecting the borders, for electronic devices. Finally, it will describe practical tools, such as flight reservation databases, which law enforcement can use to track an individual’s passage over the borders. Border search issues have been important in a number of trade secret cases as individuals attempt to leave or enter the United States with misappropriated trade secret materials.
Basic legal principles
This section of the article is based largely on a monograph entitled “Border Searches and Seizures,” revised in May 2009, issued by the Counterterrorism Section of the National Security Division of the Department of Justice. Border search authority allows authorized law enforcement agents to conduct warrantless searches of persons, baggage, objects, vehicles, and vessels crossing the nation’s borders. In general, no heightened level of suspicion is required. The Supreme Court has recognized that this is reasonable and necessary to protect the sovereignty of the United States. See United States v. Ramsey, 431 U.S. 606, 616 (1977). This authority, while broad, is circumscribed primarily by three factors. First, the search must occur at the border, with certain narrowly-defined exceptions. Second, only certain classes of law enforcement agents are authorized to conduct border searches. Third, the extent of border search authority depends on what is being searched.
Defining the border
Border searches must occur at the border, with certain narrowly-defined exceptions. The border is made up of three components. First, there is the geographical border. Second, there are “functional equivalents” of the border. Third, courts have recognized “extended borders.” As an initial matter, border search authority and its limitations extend equally to those entering and exiting the United States. See United States v. Abbouchi, 502 F.3d 850 (9th Cir. 2007); United States Boulelhem, 339 F.3d 414 (6th Cir. 2003); United States v. Ezeiruaku, 936 F.2d 136, 143 (3d Cir. 1991); United States v. Berisha, 925 F.2d 791, 795 & n.8 (5th Cir. 1991); United States v. Hernandez-Salazar, The geographical border is made up of land, sea, and air borders. The land borders lie between the United States and Canada and the United States and Mexico. See United States v. McPherson, 664 F.2d 69, 72 (5th Cir. 1981). The sea borders generally comprise the territorial waters of the United States, which extend up to three miles off the nation’s coasts. Id. For CBP enforcement purposes, however, “customs waters” extend up to 12 miles off the coasts. 19 U.S.C. §§ 1401, 1581 (2008). The air borders extend upward directly from the land and sea borders. The “functional equivalents” of the border include locations where persons or things are effectively entering or exiting the United States even though they do not lie on one of the geographical land, sea, or air borders. No particularized suspicion is required for searches at functional equivalents of the border. See United States v. Cardenas, 9 F.3d 1139, 1148 (5th Cir. 1993). For example, the nation’s International airports, even those such as St. Louis or Chicago which are located in the heartland, are functional equivalents of the border for persons and things originating directly from or heading directly to foreign destinations. See United States v. Almeida-Sanchez, 413 U.S. 266, 272-73 (1973) (Lambert-St. Louis International Airport functional equivalent of the border for air travelers arriving directly from Mexico City). This extends to structures connected to the airports. See United States v. Ramos, 645 F.2d (5th Cir. 1981) (proper to conduct border search of customer who returned to Customs area from lobby of hotel attached to airport terminal).
Similarly, private planes that fly some distance into the United States before they can be practically or safely stopped by law enforcement are subject to border searches on the theory that their landing spot is the functional equivalent of the border. See United States v. Garcia, 672 F.3d 1349, 1363-64 (11th Cir. 1982) (private plane monitored by law enforcement from time it crossed air border); United States v. Stone, 659 F.2d 569 (5th Cir. 1981) (same). The same principles apply on water and land. Inland waters with direct access to the oceans are functional equivalents of the border. See Villamonte-Marquez, 462 U.S. at 579. A railroad yard where trains arrive directly from or depart directly to foreign locations is the functional equivalent of the border. See United States v. Boumelhem, 339 F.3d at 414 (6th Cir. 2003). Private consignment hubs for international shipping, such as those for Federal Express or United Parcel Service, are considered functional equivalents of the border. See United States v. Seljan, 547 F.3d 993 (9th Cir. 2008) (Federal Express); United States v. Abbouchi, 502 F.3d at 850 (9th Cir. 2007) (United Parcel Service).
In sum, there are three factors to be considered in determining whether a search occurred at the “functional equivalent of the border”:
- Whether there is reasonable certainty that an international border was crossed
- Whether there was opportunity for the object of the search to have changed materially since crossing the border
- Whether the search occurred at the earliest practical point after the border crossing.
United States v. Hill, 939 F.2d 934, 936 (11th Cir. 1991). The “extended border” doctrine also permits border searches at locations remote from actual geographical borders but requires “reasonable suspicion” of criminal activity. See Cardenas, 9 F.3d at 1148. A search at the “extended border,” unlike one at the functional equivalent of the border, need not occur at the earliest practical point after the border crossing, and thus permits searches further away from the border. See Hill, 939 F.2d at 934.
Because this makes the extended border search more intrusive, however, courts demand a heightened level of suspicion, along with other factors:
- Reasonable certainty the border was crossed
- Reasonable certainty that the person or thing searched had not changed condition since crossing the border
- Reasonable suspicion of criminal activity. See Cardenas, 9 F.3d at 1148.
The Cardenas court defined “reasonable certainty” as more than probable cause, but less than proof beyond a reasonable doubt.
Who may conduct border searches
Border searches must be conducted only by authorized border law enforcement agents. In most cases, this means either ICE or CBP, which have concurrent jurisdiction to enforce the customs and immigration laws of the United States. See 8 U.S.C. §§ 1225 and 1357 (2009); 19 U.S.C. §§ 482, 1499, and 1582 (2008).
The United States Coast Guard also has officers authorized to enforce customs laws and therefore to conduct border searches. See 14 U.S.C. § 143 (2008); 19 U.S.C. § 1401(I) (2008). In rare instances, the Secretary of the Treasury may delegate border search authority to outside law enforcement personnel who “may perform any duties of an officer of the Customs Service.” Id. So long as authorized agents conduct the border search, the presence of other law enforcement agents does not invalidate it. First, ICE and CBP agents have statutory authority to seek assistance when necessary from other law enforcement agencies. See 19 U.S.C. § 507. Second, the presence of other law enforcement agencies does not detract from the authority of authorized border agents to conduct warrantless searches pursuant to their role as guardians of the border. See Boumelhem, 339 F.3d at 414; United States v. Gurr, 471 F.3d 144 (D.C. Cir. 2006); United States v. Schoor, 597 F.2d 1303 (9th Cir. Compare United States v. Soto-Soto, 598 F.2d 545 (9th Cir. 1979) (ordering suppression where FBI agent conducted border search of vehicle without assistance of border personnel or delegation of authority from Secretary of Treasury).
What is being searched
The extent of border search authority depends on what is being searched. The main distinction is between persons and things. There are also special rules for documents and mail. Ultimately, differences are based on the level of intrusion of the search. Persons: All persons crossing United States borders are subject to search. See United States v. Montoya de Hernandez, 473 U.S. 531 (1985); 19 U.S.C. § 1582 (2008). No particularized suspicion is necessary for “routine” searches. Montoya de Hernandez, 473 U.S. at 538. “Non-routine,” or more intrusive border searches of persons, however, may require “reasonable suspicion.” Id. at 541 (holding that reasonable suspicion is required to detain a traveler in order to monitor her bowel movements for contraband in her alimentary canal but expressly declining to rule on other “non-routine border searches such as strip, body-cavity, or involuntary x-ray searches”). In so holding, the Supreme Court cited its conclusion some 20 years prior that "[t]he interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusion [beyond the body’s surface] on the mere chance that the desired evidence might be obtained." Id. at 540, n. 3 (quoting Schmerber v. California, 384 U.S. 757, 769-70 (1966)). The Supreme Court has not yet revisited the issue of non-routine border searches of persons. The Circuit Courts which have considered the issue, however, have generally required border agents to have reasonable suspicion for non-routine searches involving any significant intrusion on privacy, such as involuntary x-rays. See United States v. Vega-Barvo, 729 F.2d 1341 (11th Cir. 1984) (requiring “reasonable suspicion” even for a consensual x-ray). It seems likely that the results of any such search initiated upon less would be suppressed. See United States v. Braks, 842 F.2d 509 (1st Cir. 1988) (denying suppression of drugs which smuggler pulled voluntarily from her girdle following a pat-down by Customs officials but noting that had agents conducted a strip search, “reasonable suspicion” would have been required).
The First Circuit set out a six-prong test for determining whether a non-routine border search required “reasonable suspicion”:
- Whether the search resulted in exposure of intimate body parts or required disrobing
- The degree of physical contact between the Customs official and the individual being searched
- Whether force was used Whether the search exposed the individual to pain or danger
- Whether the individual’s reasonable expectation of privacy (if any) was abrogated
- The overall manner in which the search was conducted. Id. at 512.
Things: All baggage, vehicles, and vessels crossing the nation’s borders are subject to search. 19 U.S.C. §§ 1496, 1581 and 1582 (2008). Moreover, border officials may use force, if necessary, to stop vehicles and vessels. 19 U.S.C. § 1581 (2008). This is primarily so that CBP and ICE officials can enforce the nation’s customs laws. Thus far, the courts have not required particularized suspicion for any searches of baggage, vehicles, or vessels. The analysis which applies to persons, especially regarding intrusion on privacy, simply does not carry over to things. See United States v. Flores-Montano, 541 U.S. 149 (2004) (declining to suppress contents of gas tank which was removed from vehicle and dismantled even though border officials did not have reasonable suspicion that a crime had been committed). The Supreme Court however, declined to rule out the possibility that a search conducted in a "particularly offensive manner" might violate the Fourth Amendment. Id. at 154, n.2 (quoting United States v. Ramsey, 431 U.S. 606 (1977).
Documents: The seizure of documents during border searches has been somewhat more controversial. While the courts have generally recognized that the documents, just like other objects, may be inspected, there is some dispute about whether and under what circumstances they may be copied. This appears to turn on whether the materials copied are evidence of customs violations or other crimes. Moreover, the proliferation of laptop computers and handheld devices, like Blackberries, which can contain thousands of documents, has raised new questions. The courts have clearly recognized that border search authority gives law enforcement the right to read documents. See United States v. Seljan, 547 F.3d 993 (9th Cir. 2008) (upholding border search of Federal Express package and reading of correspondence inside). In fact, the enforcement of certain statutes, such Title 19, United States Code, § 1305, which prohibits the importation of obscene materials, practically requires it. See United States v. 12 200-Ft. Reels of Super 8mm Film, 413 U.S. 123 (1973) (upholding Constitutionality of 19 U.S.C. § 1305).
Copying the documents pursuant to border search authority is not so clear. For instance, as discussed more fully below, CBP and ICE policies allow copying of information contained in electronic devices for the purpose of inspection, but require destruction of those copies if no evidence of customs violations or other crimes is found. Courts have differed on whether border search authority permits agents to copy documents. See United States v. Rodriguez, 995 F.2d 776, 778 (7th Cir. 1993) (upholding copying of documents as border search because this simply preserved the border officer’s eyewitness observations); United States v. Fortna, 796 F.2d 725 (5th Cir. 1986) (same); but see United States v. Cardona, 769 F.2d 625, 629 (9th Cir. 1985) (border search authority did not allow copying of cashier’s checks which were not evidence of currency violation enforced by border officials). So far, circuit courts have upheld warrantless border searches of laptop computers, Blackberries, and other handheld electronic devices. See United States v. Arnold, 523 F.3d 941 (9th Cir. 2008) (no particularized suspicion required for border search of laptop because it is analogous to a container); see also United States v. Ickes, 393 F.3d 501 (4th Cir. 2005).
In a recent district court case, the magistrate, later affirmed by a federal court, suppressed the contents of a laptop computer primarily because it was taken 170 miles from the border for inspection and held for 2 days. The judge determined that the search occurred at the “extended border,” and thus required reasonable suspicion of criminality. See United States v. Cotterman, No. CR 07-1207-TUC-RCC, 2009 WL 465028 (D. Ariz. Feb. 24, 2009). Even this decision, however, which the government has appealed, does not seem to contravene generally the findings of the Arnold and Ickes courts that reasonable suspicion is not required for ordinary border searches of computers. Mail: Mail handled by the United States Postal Service (as opposed, for instance, to packages handled by private companies such as Federal Express or United Parcel Service) is subject to border search with certain exceptions. Generally, border officials may not open sealed correspondence (or what appears to be solely correspondence) or letter class mail weighing less than 16 ounces. See 19 U.S.C. (2008); 19 C.F.R. § 145 (2009).
ICE and CBP policies for border searches of electronic devices
ICE and CBP have both promulgated policies to give agents more specific guidance in conducting border searches. While these policies are based in part on statute and case law, both agencies have implemented more restrictive policies than the controlling law allows. This appears to be because courts, as discussed above, have generally been reluctant to place limits on all but the most intrusive and/or offensive border searches. In addition, as a practical matter, the agencies do not want to generate litigation that might result in more stringent limits on border searches. Two recent documents, one from ICE and one from CBP, lay out procedures for border searches of information in electronic devices. As discussed above, this is the category of border search most likely to generate litigation, because the law is more settled for persons, things, and mail.
The ICE directive entitled “Border Searches of Electronic Devices,” issued August 18, 2009 (ICE Information Policy), sets forth: legal guidance and . . . policy and procedures within U.S. Immigration and Customs Enforcement (ICE) with regard to border search authority to search, detain, seize, retain, and share information contained in electronic devices possessed by individuals at the border, the functional equivalent of the border, and the extended border to ensure compliance with customs, immigration, and other laws enforced by ICE. ICE Information Policy. 1.1. The CBP directive entitled “Border Search of Electronic Devices Containing Information,” dated August 20, 2009 (CBP Information Policy), similarly sets forth guidance and standard operating procedures for searching, reviewing, retaining, and sharing information contained in computers, disks, drives, tapes, mobile phones and other communications devices, cameras, music and other media players, and any other electronic or digital devices, encountered by U.S. Customs and Border Protection (CBP) at the border, both inbound and outbound, to ensure compliance with customs, immigration, and other laws that CBP is authorized to enforce. CBP Information Policy,
The policy
The basic policies of ICE and CBP, especially in light of the recent Arnold decision, both take the position that agents may conduct border searches of electronic devices without individualized suspicion. ICE Special Agents acting under border search authority may search, detain, seize, retain, and share electronic devices, or information contained therein, with or without individualized suspicion, consistent with the guidelines and applicable laws set forth [in the ICE Information Policy]. Assistance to complete a border search may be sought from other Federal agencies and non-Federal entities, on a case by case basis, as appropriate. When U.S. Customs and Border Protection (CBP) detains, seizes, or retains electronic devices, or copies of information therefrom, and turns such over to ICE for analysis and investigation (with appropriate documentation), ICE policy will apply once it is received by ICE. Nothing in this policy limits the authority of Special Agents to make written notes or reports or to document impressions relating to a border encounter in ICE’s paper or electronic record keeping systems. ICE Information Policy, 6.1-6.3. In the course of a border search, with or without individualized suspicion, an Officer may examine electronic devices, and may review and analyze the information encountered at the border, subject to the requirements and limitations provided [in the CBP Information Policy] and applicable law. CBP Information Policy, 5.1.2. Officer is defined as a “Customs and Border Protection Officer, Border Patrol Agent, Air Interdiction Agent, Marine Interdiction Agent, Internal Affairs Agent, or any other official of CBP authorized to conduct border searches.” CBP Information Policy,
Detention
Both ICE and CBP take the position that they may detain documents and electronic media crossing the border for a “reasonable time” to review them. ICE Information Policy, 8.3; CBP Information Policy, 5.3.1. While neither agency’s policy defines “reasonable time” per se, ICE does set out the following factors for agents to consider:
- The amount of information needing review;
- Whether the traveler was deprived of his or her property and, if so, whether the traveler was given the option of continuing his or her journey with the understanding that ICE would return the property once its border search was complete or a copy could be made;
- Whether assistance was sought and the type of such assistance;
- Whether and when ICE followed up with the agency or entity providing assistance to ensure a timely review;
- Whether the traveler has taken affirmative steps to prevent the search of his or her property in a timely fashion; and
- Any unanticipated exigency that may arise. ICE Information Policy, 8.3(3). Both agencies stipulate that this includes making copies.
ICE Information Policy 8.1(4); CBP Information Policy, 5.3.1. Both add, however, that the copies must thereafter be destroyed if there is no probable cause to seize them. ICE Information Policy, 8.5(1)(e); CBP Information Policy, 5.3.1.2. Both agencies require documentation of all steps taken by the detaining officers. ICE Information Policy, 8.2; CBP Information Policy, 5.5.
Assistance from other federal agencies and entities
Both agencies allow agents to seek assistance from other federal agencies or non-federal entities for translation, decryption, and other technical assistance. ICE Information Policy, 8.4(1); CBP Information Policy, 5.3.2.2. No individualized suspicion is required; the reasoning is that without this assistance, the agents cannot even read the documents or electronic media. Id. Both agencies also allow agents to seek assistance from other federal agencies or non-federal entities for “subject matter” assistance, but require that an agent have “reasonable suspicion of activities in violation of the laws enforced by [his agency].” ICE Information Policy, ¶ 8.4(2); CBP Information Policy, ¶ 5.3.2.3. Both agencies also set time limits for the assistance to be rendered—30 days for ICE and 15 days for CBP—with extensions requiring supervisory approval. ICE Information Policy, ¶ 8.4(5); CBP Information Policy, ¶ 5.3.3.2.
Retention and sharing
Generally, ICE and CBP may retain and/or seize information from a border search only if they have “probable cause of unlawful activity.” ICE Information Policy, ¶ 8.5(1)(a); CBP Information Policy, ¶ 5. 4. 1. 1. Probable cause is not required to retain immigration documents but they must be handled under the “privacy and data protection standards of the system in which such information is retained.” ICE Information Policy, ¶ 8.5(1)(b); CBP Information Policy, ¶ 5.4.1.2. Both agencies permit agents to share information from a border search with “[f]ederal, state, local, and foreign law enforcement agencies” in accordance with applicable law and policy. ICE Information Policy, ¶ 8.5.(1)(c); CBP Information Policy, ¶ 5.4.1.3. The applicable law is quite favorable to the government. See United States v. Gargotto, 476 F.2d 1009, 1014 (6th Cir. 1973) (evidence obtained by one police agency may be shared with another without a warrant). On the other hand, an agency from which ICE or CBP sought assistance in order to read or understand the documents may retain copies only if it has “independent legal authority to do so—for example, when the information is of national security or intelligence value,” and must inform ICE or CBP of its intention to do so. ICE Information Policy, ¶ 8. 5(2)(c); CBP Policy, ¶ 5.4.2.3.
Special categories
Both agencies set out special rules for the following categories of information, among others: (i) business or commercial information, (ii) medical records, and (iii) legal information. Both agencies require agents to treat business information as if it is confidential and to make sure that it is not subject to unauthorized disclosure. Both cite the possible ramifications of the Trade Secrets Act and the Privacy Act. ICE Information Policy, ¶ 8.6(2)(a); CBP Information Policy, ¶ 5.2.3. Both agencies warn agents that they may encounter attorney-client privileged material. In such a case, they are to seek advice from agency counsel or the local United States Attorney’s office before proceeding any further. ICE Information Policy, ¶ 8.6.(2)(b), CBP Information Policy, ¶ 5.2.1.
Border enforcement lookout tools
There are a number of databases which ICE and CBP use to monitor the movement of individuals crossing the nation’s borders. The most complete are those with information about air passengers, which pull data primarily from the airline data bases.
Treasury Enforcement Communications System (TECS)
The Treasury Enforcement Communications System (TECS) is an overarching repository for law enforcement and investigative information to which all federal law enforcement agencies have access in varying degrees. TECS comprises several modules which are available to and used by appropriate federal law enforcement agencies for screening and targeting, among other purposes. One is the Automated Targeting System, the primary database for the Department of Homeland Security, which is described in more detail below. The Advanced Passenger Information System (APIS) is another, in which an airline or sea carrier electronically transmits a passenger manifest to Customs a prescribed period of time prior to crossing the United States border.
Automated Targeting System (ATS)
The Automated Targeting System (ATS) is used by agents with the Department of Homeland Security, which includes both ICE and CBP. ATS, in turn, comprises six components:
- ATS-N, for screening inbound or imported cargo
- ATS-AT, for screening outbound or exported cargo
- ATS-L, for screening private passenger vehicles crossing at land border ports of entry using license plate data
- ATS-I, for cooperating with international customs partners in shared cargo screening and supply chain security
- ATS-TAP, for assisting tactical units in identifying anomalous trade activity and performing trend analysis
- ATS-P, for screening travelers and conveyances entering the United States in the air, sea and rail environments. System of Records Notice for the Automated Targeting System, issued August 3, 2007 (SORN-ATS).
ATS-P is the most important component for law enforcement agents seeking to track individuals. It maintains Passenger Name Record (PNR) data, which is the information provided to airlines and travel agents by or on behalf of air passengers seeking to book travel. PNR data, which in turn comes from the industry’s Air Carriers Reservation System, comprises some or all of the following, depending upon availability:
- PNR record locator code
- Date or reservation/issue of ticket
- Date(s) of intended travel
- Name(s)
- Available frequent flier and benefit information
- Other names on PNR
- All available contact information
- All available billing/payment information
- Travel itinerary
- Travel agency/agent
- Travel status of passenger
- Ticketing information
- Baggage information
- Seat information
- Any collected APIS information
- All historical changes to the PNR. SORN-ATS at 14. Queries made on the ATS-P system will provide field agents with notification of a “hit” when PNR data is dumped into the system.
Reservation monitoring
Reservation Monitoring (ResMon) is a database available to select ICE and CBP assets, primarily the airport “Passenger Analysis Units,” which contains all of the information that an airline views upon pulling up a reservation. It is analogous to having “read only” access to an airline agent’s terminal, except that it contains itinerary data only for travel crossing the United States border, not purely domestic or foreign travel. Most of the information in ResMon is also available in the ATS-P database, with the exception of credit card numbers, frequent flier information, and the like. ResMon queries give agents notice when an individual makes a reservation for cross-border travel.
Border searches are an extremely useful tool for law enforcement. They are particularly relevant in trade secrets investigations because of the frequency with which targets enter or exit the country shortly after misappropriating the secret. Like any warrantless search, however, they are not a substitute for a search warrant, and, if time permits, a warrant is preferable. Even if there is not time for a warrant, however, a border search will be most effective when border agents have at least some lead time and information on the suspected crimes of the individuals to be searched—especially for complex crimes such as theft of trade secrets.
Evan Williams has served as a Trial Attorney in the Computer Crime and Intellectual Property Section of the United States Department of Justice since 2008. He previously served as Assistant U.S. Attorney in the Eastern District of New York, serving first in the General Crimes Division and later in the Long Island Division. Prior to that he was an Assistant District Attorney in the New York County District Attorney’s Office, serving first in the Trial Division and later in the Investigations Division. Read More : http://ekonomi-hawin-net.blogspot.com/2015/05/trade-secret-and-economic-espionage.html