On April 21st, the Ninth Circuit held in United States v. Arnold (pdf) 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 touse the opinion by Judge O'Scannlain to argue that almost every property search at the border is constitutionally acceptable.
EFF filed an amicus in the case (pdf), 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.