Tuesday, April 22, 2008

Hard Drives Fair Game at the Border

This SF Gate article discusses a recent Ninth Circuit holding. Apparently that there is no 4th Amendment violation when border patrol agents examine the content of travelers' laptops without probable cause reasonable suspicion:

Border agents would need grounds for suspicion before conducting a body search, but a "piece of property simply does not implicate the same dignity and privacy concerns as highly intrusive searches of the person," the court said.


A piece of property simply does not implicate the same dignity and privacy concerns as highly intrusive searches of the person???

First, yesterday's news suggests not everyone agrees that the long white finger is excessively intrusive--indeed, your friendly ER doc may be allowed to do what your border patrol agent cannot.

Secondly, why is it fair to conclude that the content of a laptop is not highly personal? What about privileged information, like medical records, attorneys' client files, or (closer to our hallowed halls) drafts of upcoming Boalt Briefs articles? I can imagine situations where, rather than give up the contents of my laptop, I would prefer to be subjected to a . . . wait . . .

Did I just almost say that?


Update: WSJ Law Blog picked it up, too. A commentator there asks, what about password protected information?


Anonymous Anonymous said...

"yeah, but he's a peder-ass . . . 9 year olds, dude. 9 year olds."

4/22/2008 12:43 PM  
Blogger Laura said...

This is nuts. I think Klienfeld got it right in U.S. v. Gourde (on searching computers for child porn):

"... for most people, their computers are their most private spaces. People commonly talk about the bedroom as a very private
space, yet when they have parties, all the guests — including perfect strangers — are invited to toss their coats on the bed. But if one of those guests is caught exploring the host’s computer, that will be his last invitation. There are just too many secrets on people’s computers, most legal, some embarrassing, and some potentially tragic in their implications, for loose liberality in allowing search warrants."

4/22/2008 12:46 PM  
Anonymous Anonymous said...

Just to clarify - the Ninth Circuit decision said the border patrol agents don't even need REASONABLE SUSPICION to search the contents of the laptops. You wrote PROBABLE CAUSE, which is different. Basically, the holding is that at the border, the border patrol agents can search the laptop if they want, no reasonable suspicion required. The standard of required suspicion is lower because the government's interest is supposedly very strong at the border.

If you're interested in the other side of the argument, see the district court decision in the case: 454 F. Supp. 2d 999 (2006).

4/23/2008 12:14 AM  
Blogger Earl Warren said...

I hear a current Boalt 3L played a small role in drafting the district court decision. Maybe she'll be vindicated by the Supreme Court. But I wouldn't bank on it.

4/23/2008 12:52 AM  
Blogger Patrick said...


Sorry -- I didn't know the difference. Thanks for the cite, and I fixed the post.

4/23/2008 7:57 AM  
Anonymous Anonymous said...

I heard a current Boalt 3L wrote a memo on the issue for the Judge, but she did argue the same as the district court ultimately decided. Apparently, that was wrong. But she hadn't had crim pro yet, so give her a break.

4/23/2008 9:42 AM  

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