Federal Appeals Court Shuts Down Suspicionless Searches Of Laptops At The Border

Given enough time, law enforcement can break through the password that blocks access to a laptop. They can also access password-encrypted files and potentially even read the files a user deleted from their computer. As a recent opinion from the United States Court of Appeals for the Ninth Circuit puts it, “[i]t is as if a search of a person’s suitcase could reveal not only what the bag contained on the current trip, but everything it had ever carried.”

In light of the sweeping and unpredictable nature of laptop and similar searches, the court’s opinion places an important new restriction on government searches of electronic devices as the border. As a general rule, “the long-standing right of the sovereign to protect itself by stopping and examining persons and property crossing into this country” justifies nearly any search of a person crossing into the United States from another country. So if you are secreting contraband away in your luggage, you are out of luck. As the Ninth Circuit’s opinion explains, however, searches of electronic devices are far greater intrusions into a traveler’s privacy, and thus must be justified by a greater degree of suspicion before they can occur:

The amount of private information carried by international travelers was traditionally circumscribed by the size of the traveler’s luggage or automobile. That is no longer the case. Electronic devices are capable of storing warehouses full of information. The average 400-gigabyte laptop hard drive can store over 200 million pages—the equivalent of five floors of a typical academic library. Even a car full of packed suitcases with sensitive documents cannot hold a candle to the sheer, and ever-increasing, capacity of digital storage.

The nature of the contents of electronic devices differs from that of luggage as well. Laptop computers, iPads and the like are simultaneously offices and personal diaries. They contain the most intimate details of our lives: financial records, confidential business documents, medical records and private emails. This type of material implicates the Fourth Amendment’s specific guarantee of the people’s right to be secure in their “papers.” The express listing of papers “reflects the Founders’ deep concern with safeguarding the privacy of thoughts and ideas—what we might call freedom of conscience—from invasion by the government.” These records are expected to be kept private and this expectation is “one that society is prepared to recognize as ‘reasonable.’”

The upshot of this opinion is that border agents cannot randomly select a person and comb through their laptop for incriminating data, nor can they conduct a comprehensive search of every iPad that enters the United States. Rather, before conducting a complete search of an electronic device, they must have “reasonable suspicion” that the search will uncover evidence of a crime.