The American government, in its zeal to protect the Constitution of the United States (motto: “We have to destroy the Constitution in order to protect it”), has long held that it had the right to search laptops, u-disks, etc., at, around, near, or within 2,000 miles of the US border, on the grounds that because of such proximity to the border one has no constitutional right to privacy (here, we are talking real privacy, and are not using “privacy” as a code word for abortion, as liberals are wont to do–we are sure that abortions are allowed at border crossings).
Its argument has been that people crossing borders do not expect privacy to begin with, and that, for example, confiscating a laptop for three months so that it can be forensically examined is akin to a cursory look in a briefcase at a customs desk. In the government’s mind, this is no conceivable violation of an American’s right to unreasonable search and seizure.
Since many people, especially in the US government and law enforcement, have forgotten that there is a Fourth Amendment to the US Constitution, or have come to believe that it only protects government officials, here is what it says, in its entirety:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Finally, someone in the US government has noticed that the 4th Amendment both exists, and that it covers “papers”–i.e., documents. The 9th Circuit Court of Appeals has ruled:
It is the comprehensive and intrusive nature of a forensic examination—not the location of the examination—that is the key factor triggering the requirement of reasonable suspicion here ….
Notwithstanding a traveler’s diminished expectation of privacy at the border, the search is still measured against the Fourth Amendment’s reasonableness requirement, which considers the nature and scope of the search. Significantly, the Supreme Court has recognized that the “dignity and privacy interests of the person being searched” at the border will on occasion demand “some level of suspicion in the case of highly intrusive searches of the person.” … Likewise, the Court has explained that “some searches of property are so destructive,” “particularly offensive,” or overly intrusive in the manner in which they are carried out as to require particularized suspicion ….
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.’” …
Electronic devices often retain sensitive and confidential information far beyond the perceived point of erasure, notably in the form of browsing histories and records of deleted files. This quality makes it impractical, if not impossible, for individuals to make meaningful decisions regarding what digital content to expose to the scrutiny that accompanies international travel. A person’s digital life ought not be hijacked simply by crossing a border. When packing traditional luggage, one is accustomed to deciding what papers to take and what to leave behind. When carrying a laptop, tablet or other device, however, removing files unnecessary to an impending trip is an impractical solution given the volume and often intermingled nature of the files. It is also a time-consuming task that may not even effectively erase the files …
It 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.
The government then tried to argue that the fact the files were password protected gave them probable cause to suspect illegal activity, and therefore the files could be searched without a warrant. Wrong again, according to the 9th Circuit Court of Appeals:
To these factors, the government adds another—the existence of password-protected files on Cotterman’s computer. We are reluctant to place much weight on this factor because it is commonplace for business travelers, casual computer users, students and others to password protect their files. Law enforcement “cannot rely solely on factors that would apply to many law-abiding citizens,” … and password protection is ubiquitous. National standards require that users of mobile electronic devices password protect their files…. Computer users are routinely advised—and in some cases, required by employers—to protect their files when traveling overseas ….
There is a huge, glaring caveat to all this. The 9th Circuit Court of Appeals is more often than not reversed by the US Supreme Court, because of its sometimes specious and farfetched reasoning. Fortunately, this particular decision sounds like simple common sense. We can only hope the Supreme Court agrees.