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Ninth Circuit Recognizes New Rules for the Digital Age

The Ninth Circuit’s recent decision that “forensic examination” of a laptop hard drive at the border, without suspicion, violates the Fourth Amendment denotes a keen understanding of modern technology. The court recognized that the old rules don’t always fit the digital realm.

  • Michael Price
March 18, 2013

Cross­pos­ted on The Huff­ing­ton Post.

Until recently, U.S. Customs agents were free to copy every bit of data from your elec­tronic devices. They could read all your docu­ments, see all your pictures, review your brows­ing history, and even rummage through deleted files – for no reason what­so­ever. To cross the border was to totally surrender your digital privacy. But thanks to a decision by the U.S. Court of Appeals for the Ninth Circuit, there is finally a limit on how far the govern­ment can go.

In a water­shed opin­ion, the appel­late panel voted 8–3 that customs agents must suspect crim­inal activ­ity if they want to probe the depths of your digital life. Although the ruling seems like common sense, the law has been pain­fully slow to adapt to the real­it­ies of the digital age. Before this decision, the border search law drew no distinc­tion between your computer and your carry-on.

The judges found that the full “forensic exam­in­a­tion” of a laptop hard drive, without suspi­cion, viol­ates the Fourth Amend­ment right of free­dom from unreas­on­able searches and seizures. The term “forensic exam­in­a­tion” is an import­ant one. Curs­ory searcheseven without any suspi­cion what­so­ever of crim­inal activ­ityare still allowed, such as manu­ally brows­ing docu­ments stored on the desktop. What the appel­late court limited was the use of more intrus­ive tech­niques, such as copy­ing data and using special soft­ware to crack pass­words and recover deleted files. Although it is a relief to know that the border is not a Fourth Amend­ment-free zone, it is still troub­ling that customs agents retain wide latit­ude to snoop without suspi­cion.

Nonethe­less, the opin­ion is an import­ant step forward and could not have come at a better time. Just last month, the Depart­ment of Home­land Secur­ity (DHS), which sets policy for customs agents, released a privacy impact assess­ment. It blithely concluded that its elec­tronic search policy did not suffi­ciently implic­ate privacy rights to even consider a more limited rule for elec­tronic devicesdespite the fact that customs had applied a very differ­ent rule in the decades before 9/11, prohib­it­ing suspi­cion­less searches of docu­ments precisely because of privacy concerns. Yet DHS now main­tains that it should have free rein to rifle through the elec­tronic files of phys­i­cians, clergy, exec­ut­ives, lawyers, academ­ics and report­ers includ­ing confid­en­tial sources and priv­ileged inform­a­tionas if they were dirty socks in a suit­case. The Ninth Circuit is the first appel­late court to impose some reas­on­able limits, find­ing that “[a] person’s digital life ought not be hijacked simply by cross­ing a border.”

The Ninth Circuit displayed a keen under­stand­ing of modern tech­no­logy in recog­niz­ing that the old rules don’t always fit the digital realm. Elec­tronic devices, the court wrote, “contain the most intim­ate details of our lives: finan­cial records, confid­en­tial busi­ness docu­ments, medical records, and private emails,” includ­ing brows­ing histor­ies and deleted files that “reflect our most private thoughts and activ­it­ies”far more detail than border agents could ever glean from flip­ping through papers in a briefcase.

In this respect, the opin­ion mirrors the Supreme Court’s 2012 decision in which a major­ity of the Court agreed that long-term GPS track­ing of indi­vidu­als viol­ates the Fourth Amend­ment. Even though the police are free to follow people on public streets, Justice Sonia Soto­mayor cautioned that long-term GPS monit­or­ing is differ­ent because it “gener­ates a compre­hens­ive record of a person’s public move­ments that reflects a wealth of detail about her familial, polit­ical, profes­sional, reli­gious, and sexual asso­ci­ations.” The Ninth Circuit embraced this logic, find­ing that a full-blown search of an elec­tronic device is noth­ing short of a “computer strip search,” “akin to read­ing a diary line by line look­ing for mention of crim­inal activ­ity.”

The dissent­ing opin­ions said the major­ity was craft­ing an unwork­able rule that could jeop­ard­ize border secur­ity. But even legit­im­ate secur­ity concerns do not justify the unfettered search and seizure of private data. As the Bren­nan Center for Justice argued in an amicus brief on behalf of the National Asso­ci­ation of Crim­inal Defense Lawyers and the Elec­tronic Fron­tier Found­a­tion, the power to conduct broad, suspi­cion­less searches of elec­tronic devices has the poten­tial to render the Fourth Amend­ment irrel­ev­ant. Nor is the crim­inal suspi­cion require­ment a partic­u­larly high bar to clear; it is a modest stand­ard that has been applied by police officers for over forty years.

The Ninth Circuit’s decision is a long over­due course correc­tion, and the court deserves credit for under­stand­ing that laptops are not luggage. As judges and lawmakers struggle to determ­ine how rights guar­an­teed in the 18th century apply to the 21st, they would do well to heed the Ninth Circuit’s approach and recog­nize that the vast quant­ity of personal inform­a­tion stored on our gadgets is worthy of protec­tion from suspi­cion­less govern­ment searches.

Photo by CBP Photo­graphy.