Here’s a surprise ruling. For many years we’ve written about how troubling it is that Homeland Security agents are able to search the contents of electronic devices, such as computers and phones at the border, without any reason. The 4th Amendment only allows reasonable searches, usually with a warrant. But the general argument has long been that, when you’re at the border, you’re not in the country and the 4th Amendment doesn’t apply. This rule has been stretched at times, including the ability to take your computer and devices into the country and search it there, while still considering it a “border search,” for which the lower standards apply. Just about a month ago, we noted that Homeland Security saw no reason to change this policy.
Well, now they might have to.
In a somewhat surprising 9th Circuit ruling (en banc, or in front of the entire set of judges), the court ruled that the 4th Amendment does apply at the border, that agents do need to recognize there’s an expectation of privacy, and cannot do a search without reason. Furthermore, they noted that merely encrypting a file with a password is not enough to trigger suspicion. This is a huge ruling in favor of privacy rights.
It’s something of an article of faith among us conservatives that the 9th Circuit Court of Appeals can do no right. So it’s refreshing to see that they actually get something right once in a while.
I recognize that the government has a legitimate right to reasonable search and seizure at the border, as that is the primary method of maintaining sovereignty. If a government can no longer control its borders, is it really a government (let’s save the discussion on illegal immigration for another day, shall we?).
But beyond establishing who is and who is not a citizen, some reasonable level of suspicion, some probable cause, must be present before a more than cursory search can be justified.
This ruling will not present an undue burden on the government in fulfilling its duties, and will protect the right of the people to be secure in their persons and papers.
It’s refreshing to see a rather common sense ruling by a federal court.