Ninth Circuit Limits Search of Electronic Devices at Borders

If you own a smart phone, an Android or iOS-based device or even a hand-held gaming system or a laptop, you no longer have to worry about having the device searched by a border patrol officer when entering the United States without some sort of reasonable cause. The United States Court of Appeals for the Ninth Circuit has ruled that allowing border agents to search such devices violates Fourth Amendment protections. The court ruled that information on such devices should be considered "papers" – the Fourth Amendment reads as follows (emphasis is ours):

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The ruling states that "Homeland Security’s border agents must demonstrate reasonable suspicion of wrongdoing before conducting forensic analysis of laptop computers and electronic devices." Judge M. Margaret McKeown determined that laptops, iPads and similar devices can be considered "offices and personal diaries" because they contain the most intimate details of peoples' lives.

"A person’s digital life ought not be hijacked simply by crossing a border," he wrote in his opinion.

The good news is that the Court of Appeals has reaffirmed that Fourth Amendment protections should not be diminished in the name of national threats or security. It's something that our lawmakers and the White House might want to take note of the next time they push for new laws regulating the product of free speech.

Source: Comic book Legal Defense Fund


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  1. 0
    Sigma 7 says:

    In this day, why bother searching laptops?

    The ones that have stuff to hide already know how to do it, or can otherwise find other ways to sneak stuff across the border (or bypass the border entirely – there’s more than enough sites such as Dropbox or Mega.)

  2. 0
    Infophile says:

    That’s already the case. The problem is twofold:

    1. Not all police officers know this.
    2. Police officers are legally allowed to lie to you about what your legal obligations are.

    So, a police officer could lie to you and say, “You’re required to hand over your phone to me for a search, and give me any necessary passwords, or else I’ll have you arrested” and not possibly get in any trouble for it. If you do hand it over, the burden will be on you to prove in court that you didn’t hand it over voluntarily (which is effectively impossible unless there’s video evidence of the entire encounter, as otherwise it will be your word versus the cop’s).

    A further problem arises in that there are next to no checks on police officers making bogus arrests. You might not be prosecuted, but you can be forced to spend up to an entire weekend in jail (and longer in certain districts), before they release you without charge. Truly, the system is broken in the US.

    But at least this ruling does mean that you can defend yourself from being convicted if you refuse to let a cop search your phone. Arrest-and-release is another problem, which can’t be fixed by a specific court ruling like this, as it covers any crime imaginable.

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