Here's a surprise ruling. For many years we've written about how troubling it is that Homeland Security agents are able to
search the contents of electronic devices, such as computers and phones at the border, without any reason. The 4th Amendment only allows
reasonable searches, usually with a warrant. But the general argument has long been that, when you're at the border, you're not in the country and the 4th Amendment doesn't apply. This rule has been stretched at times, including the ability to take your computer and devices into the country and search it there, while still considering it a "border search," for which the lower standards apply. Just about a month ago, we noted that Homeland Security saw
no reason to change this policy.
Well, now they might have to.
In a somewhat surprising 9th Circuit ruling (en banc, or in front of the entire set of judges), the
court ruled that the
4th Amendment does apply at the border, that agents do need to recognize there's an expectation of privacy, and cannot do a search without reason. Furthermore, they noted that merely encrypting a file with a password
is not enough to trigger suspicion. This is a huge ruling in favor of privacy rights.
The ruling is pretty careful to strike the right balance on the issues. It notes that a
cursory review at the border is reasonable:
Officer Alvarado turned on the devices and opened and viewed image files while the Cottermans waited to enter the country. It was, in principle, akin to the search in Seljan, where we concluded that a suspicionless cursory scan of a package in international transit was not unreasonable.
But going deeper raises more questions. Looking stuff over, no problem. Performing a forensic analysis? That goes too far and triggers the 4th Amendment.
