Ars reports on a Ninth Circuit ruling that allows border police to search citizens’ laptops without cause. The decision treats laptops as the same as suitcases, which have long been subject to search at borders. This in spite of the fairly clear language of the Fourth Amendment, which reads:
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.
A laptop fits pretty clearly into the category of “papers and effects” and the border police are acting without probable cause or even reasonable suspicion. I’m no lawyer (yet), but these border searches sound pretty unconstitutional to me.
Thankfully, the Electronic Frontier Foundation and the Association of Corporate Travel Executives are fighting the ruling. Reports Ars:
The EFF and ACTE now argue that the Court’s decision essentially renders useless the Fourth Amendment and puts citizens’ privacy and identities at risk, because border patrols can confiscate laptops and make full copies of their contents. As anyone traveling with a laptop knows, our machines can contain personal and professional communications, banking information, legal information, tax documents, photos, (in the case of journalists) communications with confidential sources, and more—all of which can simply be copied over to a government computer and used however the government pleases. “[T]hese random searches give businesses and individuals a reason not to travel across US borders to conduct business, and they force businesses to expend significant resources protecting confidential information,” reads the brief.
The two groups argue that, because of the volume of information stored on a laptop, the level of privacy invasion at a border search is “enormous,” not to mention that computers often contain information that users may not know about or have tried to erase. Basically, the EFF and ACTE say that the information contained within doesn’t quite compare to rifling through the selection of N’Sync bobblehead dolls that I voluntarily packed away in my suitcase, or the pocket change rolling around at the bottom of my bag. Embarrassing, perhaps, but not a clear and open window directly into every aspect of my life—even the parts I’ve tried to erase.
“[T]he panel decision failed to appreciate the constitutional concerns raised when border agents randomly search and seize laptop computers from international travelers,” conclude the EFF and ACTE. They ask that the Court require only reasonable suspicion of a crime before border agents may search the contents of someone’s computer, and expect a decision from the Court on whether to rehear the case within the next few months.