THE BLOG

Digital Privacy at the Border

03/18/2013 03:41 pm ET | Updated May 18, 2013

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 searches - even without any suspicion whatsoever of criminal activity - are 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 devices - despite 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 information - as 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.