In a rare en banc ruling, the 9th Circuit Court of Appeals, for the first time, said that the 4th Amendment does have at least some application in searches performed on those entering the country, particularly searches of one’s computer. Previously, the courts have held that border searches were essentially unlimited, with no need for any evidence to justify the search.
The case involves a case where a man’s computer was seized and searched for child pornography after he was flagged as a sex offender. The court held that this did provide “reasonable suspicion” for the search, but the important thing is that the court said that border agents did need such a basis for a search of someone’s computer.
The en banc court held that the forensic examination of the defendant’s computer required a showing of reasonable suspicion, a modest requirement in light of the Fourth Amendment. The en banc court wrote that it is the
comprehensive and intrusive nature of forensic examination – not the location of the examination – that is the key factor
triggering the requirement of reasonable suspicion here. The en banc court wrote that the uniquely sensitive nature of data on electronic devices, which often retain information far beyond the perceived point of erasure, carries with it a
significant expectation of privacy and thus renders an exhaustive exploratory search more intrusive than with other forms of property.
I expect this to be appealed to the Supreme Court and would not be at all surprised if it is overturned, unfortunately. The Supreme Court has a long history of ignoring the 4th Amendment when it comes to border searches. You can read the full ruling here.
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