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.

Rep. Stephen Fincher (R-TN) introduced a bill in the House Friday that would require states that want to receive full funding for welfare assistance to force its citizens to waive their Fourth Amendment rights and submit to random drug testing. In a press release, Fincher describes the Welfare Integrity Act of 2013:

The bill requires each state participating in the Temporary Assistance for Needy Families (TANF) program to certify that applicants and current recipients are being randomly test for illegal drug use. In order to pass constitutional muster, the bill requires states to provide a consent and waiver form, where applicants are given the choice to waive their Fourth Amendment Rights and submit to a random drug test. If welfare beneficiaries fail a drug test or are arrested on a drug related offense, they will be unable to receive the benefit and cannot reapply for one year. Further, the legislation requires states that receive funding from the TANF program to certify that there is a program in place to test 20% of applicants and recipients for illegal drugs. States that do not comply would forfeit 10% of their TANF funding.

A federal appeals court has already blocked Florida’s mandatory drug-testing law, making it clear a blanket testing of public assistance applicants is likely unconstitutional. “The simple fact of seeking public assistance does not deprive a TANF applicant of the same constitutional protection from unreasonable searches that all other citizens enjoy,” the court held.

In a remarkable acknowledgment of the constitutional problems with the bill, the text of Fincher’s legislation actually calls for states to require citizens to “sign a waiver of constitutional rights with respect to testing.” Fincher suggests in his press release that the waiver is not forced because applicants can opt not to apply for benefits, but the federal appeals court made clear in its recent decision that a coerced waiver violates “the well settled doctrine of ‘unconstitutional conditions,’ the government may not require a person to give up a constitutional right . . . in exchange for a discretionary benefit conferred by the government where the benefit sought has little or no relationship to [the right].” The bill, then, would seek to require every state that wants to maintain its current level of funding to pass its own unconstitutional law.

As the Huffington Post points out, the bill is unlikely to succeed. Similar legislation introduced in 2011 “garned just seven cosponsors and failed to clear a committee.” But state bills that impose drug testing on applicants and beneficiaries are seeing increasing success, and at least seven states have already passed legislation requiring some form of drug testing for public assistance applicants or recipients. Mitt Romney even endorsed the idea during his presidential campaign.

Sen. Chuck Grassley (R-IA)

Speaking to a small group of constituents in rural Chariton, Sen. Chuck Grassley (R-IA) was asked about a Facebook rumor that the government would soon be implanting microchips in children and government workers in order to track their health records. After informing the constituent that the claim had no merit, Grassley continued by endorsing the same “right to privacy” that was the backbone of Roe v. Wade and similar decisions.

CONSTITUENT: They’re saying that they’re going to start, in 2013, putting microchips in government workers and then any kid that enrolls in school, starting in pre-school, will have a microchip implanted in them so that they can track them. [...] Is that true?

GRASSLEY: No. First of all, nothing can be done to your body without your permission. It’d be a violation of the constitutional right to privacy if that were to happen.

Watch it:

The constitutional right to privacy that Grassley refers to is not explicitly stated in the Constitution, but Roe concluded that it is one of the liberties protected by the Fourteenth Amendment, which provides that states many not “deprive any person of life, liberty, or property, without due process of law.” Anti-choice advocates, such as Justice Antonin Scalia, former Gov. Mitt Romney (R-MA), and former Sen. Rick Santorum (R-PA), all contend that women should be stripped of their ability to get an abortion because, in Scalia’s words, “there’s no right to privacy in the Constitution — no generalized right to privacy.”

Of course, Grassley remains a staunch opponent of a woman’s right to choose, receiving a “0” pro-choice score from NARAL in 2011. But for the top Republican on the Senate Judiciary Committee to confirm that the Constitution does, indeed, include a right to privacy is a major concession undercutting conservatives’ legal argument for overturning Roe.

In a major change to how America’s largest tech companies handle online privacy, Google revealed this week that it requires warrants for users’ email content and data stored in the cloud, imposing hurdles to government access to data beyond the scope of a 1986 electronic privacy law.

But even as Google’s policy is a big step forward for digital due process advocates, it doesn’t extend to a significant portion of the information Google releases to law enforcement agencies such as IP addresses used to access Google accounts, message time stamps, and to and from fields. And Google’s recently released transparency data shows that getting information on your online activities can still largely be done without a warrant.

The report shows less than a quarter of the 8,428 government requests for U.S. user data they received in July to December 2012 were search warrants, and 88 percent of requests were fully or partially complied with. The U.S. led country rankings in terms of total number of requests made and the percentage of requests complied with.

Wired quotes Google spokesman Chris Gaither on Google’s newly outlined warrant policy, which has been in effect for an unclear amount of time: “Google requires an ECPA search warrant for contents of Gmail and other services based on the Fourth Amendment to the Constitution, which prevents unreasonable search and seizure.” Google’s interpretation is novel because under the Electronic Communication Privacy Act of 1986 (ECPA), messages over 180 days old stored in the cloud only require an administrative subpoena — rather than a warrant approved by a judge — largely due to how email technology worked in 1986: It was very unusual for data to remain on external servers because of hosting costs, leading to a belief that any data left on an external server for that could be considered abandoned.

While our use of technology has changed dramatically since 1986, the law has not: An attempt to update the law last year stalled over the holidays. And while the law does not require a warrant to access some data, two federal appellate courts came to differing conclusions on the issue in 2010, one stating that obtaining the content of email messages stored on an email provider’s server requires a warrant, and another allowing magistrate judges discretion to require warrants from the government when requesting location information from cellphone providers — although both rulings only apply to their judicial district.

Google’s public stance on warrants may signal that tech companies are no longer willing to quietly accept the lack of progress on technology policy. In many sectors it has become clear our laws have not kept up with the pace of technological innovation, yet the biggest success of the tech sector last year focused on preventing bad legislation rather than updating woefully outdated regulation.