9th Circuit Limits Border Computer Searches

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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  • baal

    I’ll cheer this small victory. Yeah!

    It’s 9th circuit so the SCOTUS will slam it, of course. I know attorneys who are more than a little annoyed when the government has cloned their hard drives at boarder crossings (vacations in Mexico). They often have client data on them. Full drive encryption is available but few think to use it (and it might not stop the feds anywho).

  • baal

    Off Topic: What is the “now talking” thing in the lower right corner?

  • slc1

    Re baal @ #1

    Of course, the answer to this is so obvious that it i mine boggling that attorneys don’t done this as a matter of course. Don’t store files that one would like to keep secret on the computers hard disk at all. Store them on memory sticks that can now hold up to 64 GB of files and mail it or send it FEDEX to the office or home.

  • As I recall, previous rulings said that border searches occured before the person had technically entered the United States (even if the crossing center itself is in US territory) and thus constitutional protections cannot be invoked.

    What we really, really need is an amendment saying that the US Constitution — and its protections and guarantees — apply to all persons being subjected to US law. If you are dealing with US Border Security or Customs then you are protected by the US constitution, even if you are not a citizen and the border crossing is in Toronto. This would also apply to people being deported, people being “detained” by the CIA in other countries, etc. If the operation is legal, then constitutional protections apply. If it is not, then there are bigger problems than civil rights violations.

    Don’t worry, I’m not holding my breath on this.

  • Off Topic: What is the “now talking” thing in the lower right corner?

    And is that what’s making all the text on the main page and in Ed’s blog tiny, and keeping me from being able to click on side bar links?

  • M, Supreme Anarch of the Queer Illuminati

    Gregory in Seattle @4:

    What we really, really need is an amendment saying that the US Constitution — and its protections and guarantees — apply to all persons being subjected to US law

    It’ll involve an addition to the 14th — “No, really, we mean it.”

  • Slc1:

    Or they could use a service like Dropbox so they wouldn’t have to worry about the flash drive getting lost in the mail.

  • Aaron Logan


    There are even fewer 4th amendment protections for data stored in the cloud.

  • Artor

    @d.c.wilson. I have one word to refute your suggestion; Megaupload.

  • Ichthyic

    on that note, Kim Dotcom started a NEW megafile service… with encryption enabled communication.


    you’ll note the last bit of that domain name…


    It’s been a blast watching the back and forth on DotComs case.

    I’m actually kind of surprised Ed hasn’t made more mention of it, since it includes huge violations of local law, as well as massive over-extension of US jurisdiction, slimy use of the extradition process, and much weaseling amongst the local parliament.

    I assure anyone, that this case has bearing globally, for anyone using the internet who cares about the influence the RIAA has had on it. You should be paying attention to it.