Intellectual Property Law

The Electronic Frontier Foundation is reporting that the Ninth Circuit has recently held in United States v. Arnold that the Fourth Amendment does not require reasonable suspicion in order to allow Customs and Border Patrol agents to search a laptop computer or other digital devices.

EFF argues that “[t]he 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.” I agree. I don’t think that routine laptop searches are the same as the search of luggage. It is fundamentally different and I believe that this decision will most likely move up the chain in the appeals process.

In the meantime, for readers of this blog, be forewarned: “travelers carrying their corporation’s trade secrets, personal emails, or health and financial information are at risk of arbitrary and capricious fishing expeditions at the border.” And remember, this ruling would also apply to cell phones, digital cameras, blackberrys, zip-drives, etc.