On April 21st, the Ninth Circuit held in United States v. Arnold (pdf) that the Fourth Amendment does not require government agents to have reasonable suspicion before searching laptops or other digital devices at the border, including international airports. Customs and Border Patrol are likely touse the opinion by Judge O’Scannlain to argue that almost every property search at the border is constitutionally acceptable.

EFF filed an amicus in the case (pdf), arguing that laptop searches are so revealing and invasive that the Fourth Amendment requires agents to have some reasonable suspicion to justify the intrusion. Not only are laptops capable of storing vast amounts of information, the information tends to be of the most personal sort, including letters, finances, diaries, photos, and web surfing histories. Prior border search cases distinguished between “routine” suspicionless searches and invasive “non-routine” searches that require reasonable suspicion. Our amicus brief and the lower court opinion relied on these cases to say that the government must also have some cause to search laptops.  The Ninth Circuit panel rejected our argument that the privacy invasion resulting from searching computers is qualitatively different from, and requires higher suspicion than, searching luggage or other physical items.

The opinion is almost certainly wrong to classify laptop searches as no different from other property searches. Fourth Amendment law constrains police from conducting arbitrary searches, implements respect for social privacy norms, and seeks to maintain traditional privacy rights in the face of technological changes. This Arnold opinion fails to protect travelers in these traditional Fourth Amendment ways.

In his write up of the case, Orin Kerr says that he thinks the opinion is correct but that storage capacity is not irrelevant, its just relevant to other Fourth Amendment questions, like plain view and scope of the search.

Yet, United States v. Katz tells us that the Fourth Amendment protects people, not just places or things.  The Fourth is also sometimes a guarantor of First Amendment freedom of thought and associational rights.  Finally the Fourth protects prevailing social norms about what is and is not private.  So a bright line rule that any search of property, no matter how private, revealing or invasive, is reasonable at the border is contrary to the weight of Fourth Amendment law.  As for the particular question of searches at the border, Arnold says that only physically destructive searches are invasive and require reasonable suspicion, but that privacy destroying searches are OK without any cause.  This thinking makes the same pre-Katz mistake of giving Fourth Amendment protection based only on property rights not on privacy interests.