The Fourth Amendment generally requires that government searches must be reasonable, which typically can be satisfied via a warrant. Searches at the border, however, traditionally occupy a special status in connection with U.S. Fourth Amendment law. Recognizing that “the government’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border,” border searches are generally deemed “reasonable simply by virtue of the fact that they occur at the border.” While the Ninth Circuit has stated that the border is not an “anything goes” zone, the court has nevertheless previously held that reasonable suspicion is not required before searching electronic devices at the border. As a result, laptops and other electronic devices are commonly subject to cursory searches at the border. For some individuals, these searches can move beyond cursory review and include detailed forensic analysis that can reveal not only every file stored on the device, but also files that have previously been deleted.
Recently, however, the Ninth Circuit issued an en banc decision requiring that reasonable suspicion exist before boarder agents engage in forensic computer searches. The court also noted that password protecting an entire electronic device is not a factor that can be used to trigger reasonable suspicion. The decision is likely to impact law enforcement’s ability to engage in border searches of digital devices. Civil liberties groups have recognized the decision as providing some important additional 4th amendment protection for international travelers.