The 9th Circuit Court of Appeals has ruled in an en banc hearing that searches at the borders must adhere to the 4th amendment. A cursory once over of your laptop or tablet is OK, just as they can rifle through your luggage, but they can’t go deeper than that without probable cause or a search warrant. Further, the court held that merely password protecting or encrypting a file on your personal computer is not probable cause in and of itself.
From the ruling:
The amount of private information carried by international travelers was traditionally circumscribed by the size of the traveler’s luggage or automobile. That is no longer the case. Electronic devices are capable of storing warehouses full of information. The average 400-gigabyte laptop hard drive can store over 200 million pages—the equivalent of five floors of a typical academic library…. Even a car full of packed suitcases with sensitive documents cannot hold a candle to the sheer, and ever-increasing, capacity of digital storage.
The nature of the contents of electronic devices differs from that of luggage as well. Laptop computers, iPads and the like are simultaneously offices and personal diaries. They contain the most intimate details of our lives: financial records, confidential business documents, medical records and private emails. This type of material implicates the Fourth Amendment’s specific guarantee of the people’s right to be secure in their “papers.”…. The express listing of papers “reflects the Founders’ deep concern with safeguarding the privacy of thoughts and ideas—what we might call freedom of conscience—from invasion by the government.”… These records are expected to be kept private and this expectation is “one that society is prepared to recognize as ‘reasonable.’”
Electronic devices often retain sensitive and confidential information far beyond the perceived point of erasure, notably in the form of browsing histories and records of deleted files. This quality makes it impractical, if not impossible, for individuals to make meaningful decisions regarding what digital content to expose to the scrutiny that accompanies international travel. A person’s digital life ought not be hijacked simply by crossing a border. When packing traditional luggage, one is accustomed to deciding what papers to take and what to leave behind. When carrying a laptop, tablet or other device, however, removing files unnecessary to an impending trip is an impractical solution given the volume and often intermingled nature of the files. It is also a time-consuming task that may not even effectively erase the files.
This is huge. I’ll leave it to the lawyers to sort out what for everyone else what it all means, but it seems to me that the 9th Circuit is saying that the old doctrine that the 4th amendment doesn’t apply to people who are entering the country because they are outside the country is dead–unless of course DHS appeals to SCOTUS. I haven’t traveled outside the country except on official business in years, and each of those trips I had to submit to searches by MPs doing customs work. That won’t change for those people in that circumstance because its a condition of employment, but for everybody else this is great news. The other alternative, and one that I’ve advised people to use is to use an encrypted cloud service like Dropbox, Box, Google Drive, or Skydrive, and uninstall the connections to that from your devices before hitting the checkpoint.