An en banc (
all the 11/20 judges together) decision from the 9th Circuit has affirmed that you have the right to expect that your laptop and other devices will not be forensically examined without suspicion at the US border. It's the first time that a US court has upheld electronic privacy rights at the border, and the court also said that using an encrypted device that can't be casually searched is not grounds for suspicion. The judges also note that the prevalence of cloud computing means that searching at the border gives cops access to servers located all over the world. At TechDirt, Mike Masnick has some great analysis of this welcome turn of events:
The ruling is pretty careful to strike the right balance on the issues. It notes that a cursory review at the border is reasonable:
Officer Alvarado turned on the devices and opened and viewed image files while the Cottermans waited to enter the country. It was, in principle, akin to the search in Seljan, where we concluded that a suspicionless cursory scan of a package in international transit was not unreasonable.
But going deeper raises more questions. Looking stuff over, no problem. Performing a forensic analysis? That goes too far and triggers the 4th Amendment. They note that the location of the search is meaningless to this analysis (the actual search happened 170 miles inside the country after the laptop was sent by border agents to somewhere else for analysis). So it's still a border search, but that border search requires a 4th Amendment analysis, according to the court.
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.” Flores-Montano, 541 U.S. at 152. 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. Id. at 152, 154 n.2, 155–56; Montoya de Hernandez, 473 U.S. at 541. The Court has never defined the precise dimensions of a reasonable border search, instead pointing to the necessity of a case-by-case analysis....
The court is led by Chief Judge Alex Kozinski, who is a fan of my book Little Brother (which features a scene where DHS officials force a suspect to decrypt his devices, on the grounds that his encryption itself is suspicious), and was kind enough to write me a blurb for the new edition of the book. I'm not saying that Little Brother inspired Kozinski to issue this decision, but I'm delighted to discover that something I've been pushing through fiction since 2008 has made it into law in 2013.