On April 21st, the Ninth Circuit held in United States v. Arnold that the Fourth Amendment does not require government agents to have reasonable suspicion before searching laptops or other digital devices at the border, including international airports. Customs and Border Patrol are likely to use the opinion to argue that almost every property search at the border is constitutionally acceptable.

EFF filed an amicus brief in the case, arguing that laptop searches are so revealing and invasive that the Fourth Amendment requires agents to have some reasonable suspicion to justify the intrusion. Not only are laptops capable of storing vast amounts of information, the information tends to be of the most personal sort, including letters, finances, diaries, photos, and web surfing histories. Prior border search cases distinguished between "routine" suspicionless searches and invasive "non-routine" searches that require reasonable suspicion. Our amicus brief and the lower court opinion relied on these cases to say that the government must also have some cause to search laptops. The Ninth Circuit panel rejected our argument that the privacy invasion resulting from searching computers is qualitatively different from, and requires higher suspicion than, searching luggage or other physical items.

The opinion is almost certainly wrong to classify laptop searches as no different from other property searches. Fourth Amendment law constrains police from conducting arbitrary searches, implements respect for social privacy norms, and seeks to maintain traditional privacy rights in the face of technological changes. This Arnold opinion fails to protect travelers in these traditional Fourth Amendment ways.

The defendant has time to petition the Ninth Circuit to rehear the case en banc, and the Court might agree to do so. The panel included a District Court judge sitting by designation. Additionally, the opinion sets up Arnold's reliance on cases protecting highly private areas like the home from suspicionless searches as a straw man and then knocks the argument down by pointing out "the simple fact that one cannot live in a laptop". This strained and strange argument suggests that Arnold is not the last word on border searches of laptops. In the meantime, travelers carrying their corporation's trade secrets, personal emails, or health and financial information are at risk of arbitrary and capricious fishing expeditions at the border.

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