Intellectual Property Law

Federal agents at the border do not need any reason to search through travelers' laptops, cell phones or digital cameras for evidence of crimes, a federal appeals court ruled Monday, extending the government's power to look through belongings like suitcases at the border to electronics.

The unanimous three-judge decision reverses a lower court finding that digital devices were "an extension of our own memory" and thus too personal to allow the government to search them without cause. Instead, the earlier ruling said, Customs agents would need some reasonable and articulable suspicion a crime had occurred in order to search a traveler's laptop.

On appeal, the government argued that was too high a standard, infringing upon its right to keep the country safe and enforce laws. Civil rights groups, joined by business traveler groups, weighed in, defending the lower court ruling.

The 9th U.S. Circuit Court of Appeals sided with the government, finding that the so-called border exception to the Fourth Amendment's prohibition on unreasonable searches applied not just to suitcases and papers, but also to electronics.

The ruling (.pdf) came in a case where customs agents searched the laptop of Michael Arnold who was returning from the Philippines. They found images they believed to be child pornography, seized the laptop and later arrested him. While the lower court ruling excluded from trial the pictures of young boys the government says it found on the hard drive, they now can be used again.

The panel chose to follow the reasoning of a similar case from the 4th Circuit, known as Ickes (.pdf), which held that the government did not need any reason to search a vehicle crossing the border.

The 9th's ruling did not, however, clarify whether a traveler has to help the government search his computer, by providing the login information, or what would happen when the government decided to search a laptop with encrypted data on the drive. The defendant in the case can appeal the decision to the U.S. Supreme Court, but the Court is unlikely to take up an issue that two separate appeals courts have agreed upon.

In the meantime, travelers should be aware that anything on their mobile devices can be searched by government agents, who may also seize the devices and keep them for weeks or months. When in doubt, think about whether online storage or encryption might be tools you should use to prevent the feds from rummaging through your journal, your company's confidential business plans or naked pictures of you and your-of-age partner in adult fun.

The case is Arnold vs. USA.

Original Photo: dmealiffe

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