This is a very important ruling in the battle over the US Government's "anything goes" border search policies.

I think the court's analysis of the Fourth Amendment implications of border searches of electronics is incorrect. It attempts to draw a line in the sand that says strip searches require suspicion but searches of electronics do not. This conclusion is reached by arguing that if the search of the content of a brief case is not Unconstitutional than the search of the content of a laptop must also not be Unconstitutional, because they are both containers of potentially private information. Its probably the most reasonable and articulate finding on this that I've seen, but in some respects that makes it a bit more straightforward to challenge.

This analysis fails to consider that the scope of the information contained in a laptop is much wider than the maximum possible scope of the information that could be contained in a briefcase, and so the privacy impact is not just greater but rises to a level that is categorically different. This relates to the Mosaic theory of Fourth Amendment analysis which was raised recently in Jones. The fact that the police might see you driving down a particular street without having to get a warrant does not mean that its OK for the police to monitor every movement that you ever make with an electronic device. The fact that the police might look at a few documents that you happen to have in your briefcase while crossing the border does not mean that the they can spend months analyzing a complete archive of every email you've ever sent and every web page you've visited in the past couple of weeks.

The Mosaic theory is, mind you, controversial, but I think its necessary - its where we need to go in order to deal with issues like this.

Furthermore, the court quotes an older case in which it is observed that "Requiring Reasonable Suspicion for all computer searches may 'allow individuals to render graphic contraband... immune to [a] border search simply by scanning images onto a computer disk.'" While that is correct, it ignores the fact that individuals can already render graphic contraband immune to a border search by transferring that information across the border over an Internet file transfer instead of carrying it on a computer disk. Arguably the warrant requirements for wiretapping international telecommunications are a matter of Congressional policy rather than a Constitutional requirement, but applying ancient privacy principals to new technologies is a complicated interaction between all three branches of government and the court is remiss for not at least making note of this contradiction.

The analysis of the challenge to the duration that House's electronics were seized is kind of lame. Basically the court is saying that the government cannot hold onto your laptop longe... [ Read More (0.6k in body) ]