Court Rules Customs and Border Protection Does Not Have the Right to Search Electronic Devices Without Reasonable Suspicion

A U.S. Customs and Border Protection officer at the Port of Nogales / U.S. Customs and Border Protection

The 9th Circuit Court of Appeals has ruled that Customs and Border Protection officers do not have the right to confiscate or download every laptop or electronic device brought into the U.S. without "reasonable suspicion." A report from the Department of Homeland Security Office of Civil Rights and Civil Liberties drew criticism from the ACLU and other Civil Liberties groups last month after it was announced that the office would uphold ICE and CBP’s authority to conduct “suspicionless and warrantless” searches of electronic merchandise held by travelers at the border and “its functional equivalent.”

The Washington Times reports that the court ruled Friday that people have an expectation that their data is private and that the government must have reasonable suspicion before it starts to do any "intensive snooping."

The decision overturned a lower courted ruling in U.S. v. Cotterman, now barring evidence from a child pornography trial obtained from a password-protected hard drive confiscated during a border search.

While the ruling appears to be win for privacy advocates, Kevin Gosztola of Firedoglake notes that the case leaves open what permits enough "suspicion" for border agents to conduct an extensive search of electronic devices.

The result of the ruling is the judges appear to have concluded there should be a “reasonable suspicion” standard for forensic examination of devices beyond the initial search at the border to protect at least some of a person’s privacy that has not yet been violated. The ruling also found “password-protected files” should not be considered suspicious. But, the standard for establishing “reasonable suspicion” that led the court to reverse a previous ruling seems to be considerably weak.

New York University's Brennan Center for Justice served as counsel for amici in the case, and said in a statement that the Court's decision Friday was a "watershed ruling" that "drew a line in the sand recognized that the vast amount of personal information and sensitive data on laptops, cell phones, and other electronic devices is worthy of Fourth Amendment protection."

An attorney with Electronic Frontier Foundation, which also participated in the case as amici, told POLITICO “We’re happy to see the court create some restrictions on the government’s ability to search at the border. We’ve long worried that the border can be a free-for-all zone at some times, so we’re happy to see the court recognize that that doesn’t have to particularly be the case, particularly when it comes to electronic devices."