Federal appeals court raises standard for border inspections of laptops

[JURIST] The US Court of Appeals for the Ninth Circuit [official website] ruled Friday that Homeland Security's border agents must demonstrate reasonable suspicion [opinion, PDF] of wrongdoing before conducting forensic analysis of laptop computers and electronic devices. "Laptop computers, iPads and the like are simultaneously offices and personal diaries. They contain the most intimate details of our lives," wrote Judge M Margaret McKeown. "A person's digital life ought not be hijacked simply by crossing a border." Border searches are an exception to the Fourth Amendment's warrant preference, but this holding serves to narrow the exception. The case concerned a 2007 search of a traveler's laptop which resulted in the discovery of child pornography. The Ninth Circuit found that reasonable suspicion was justified in this case due to the defendant's history of sex offenses and password-protected files.

The Ninth Circuit's heightening of border inspections for laptops follows several previous decisions on the subject. In 2010 the American Civil Liberties Union challenged the government's ability to search electronic devices without reasonable suspicion [JURIST report]. In 2009 Barry Steinhard, Senior Advisor of Privacy International, discussed why reasonable suspicion should be required [JURIST comment] for laptop searches. Also in 2009, John Wesley Hall, Jr., Former President of the National Association of Criminal Defense Lawyers, discussed why reasonable suspicion should be involved [JURIST comment] in border inspections of laptops. Also that year the Department of Homeland Security announced new restrictions on controversial searches of laptops [JURIST report].

 

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