A plaintiff has no claim for breach of contract or a Fifth Amendment “taking” for the detention and damage of his laptop computer by U.S. Immigration and Customs Enforcement (ICE), the U.S. Court of Appeals in the Federal Circuit has ruled. Kam-Almaz v. U.S., 2012 U.S. App. LEXIS 12581 (Fed. Cir. June 20, 2012).
Majd Kam-Almaz, a U.S. citizen employed in international disaster relief assistance, on April 7, 2006, was detained as a “person of interest” by U.S. Immigration and Customs Enforcement (ICE) at Dulles International Airport on his way home from a business trip abroad. He was accused of no wrongdoing. His laptop computer and two flash drives were taken for review by ICE border agents. Kam-Almaz was provided a receipt and told his property would be returned within 30 days. In fact, the computer hard drive failed while being examined by ICE, destroying much of Kam-Almaz business software.
Kam-Almaz sued the federal government, alleging breach of an implied-in-fact contract and an unlawful taking under the Fifth Amendment. He claimed damages totaling $469,480 due to lost business contracts resulting from his inability to access his computer files as well as replacement hardware, software, and warranty costs.
On June 20, 2012, the Court of Appeals for the Federal Circuit affirmed the lower court decision to dismiss Kam-Almaz’s claims. The Court found: 1) there was no implied-in-fact contract when ICE agents detained the laptop and flash drives, and 2) “property seized and retained pursuant to the government’s police power is not taken for a public use within the context of the Fifth Amendment’s Takings Clause.”
For international business travelers, this is a warning that in conducting routine border searches of personal effects, including laptop computers, and in detaining and inspecting this property, even without a warrant, U.S. law enforcement is given wide latitude, and it may be difficult for those who suffer economic harm as a consequence of possible mistakes to obtain recompense from the government. Employers and international business travelers should keep in mind that while ICE and Customs and Border Protection (CBP) have developed guidelines for secure and efficient handling and return of laptops and flash drives, sensitive business-related information can be compromised or destroyed without any adequate legal recourse against the government. Employers should consult with counsel to discuss the ways to minimize the risks of border searches in the first place and how to effectively engage with U.S. border enforcement agencies where sensitive equipment and information has been seized.