Yesterday, the 9th Circuit Court of Appeals handed down an extremely important ruling on electronics searches at border crossings. After years of writing and talking about this issue I'm very excited to finally see a court take a position that is in-line with what I and many others have been advocating that the policy ought to be.

The court ruled that although customs officials can order you to open up your laptop for them so they can poke around in it manually, they cannot perform a full forensic investigation of the drive without some sort of reason to suspect that you might be guilty of a crime.

The idea is that the contents of your luggage are subjected to search at the border and so the contents of your electronics may be subject to a search at a similar level of intrusiveness. This might mean asking you to boot it up, looking around at the files on the hard drive, looking at the browser history. However, when customs agents seize your laptop from you and mail it off to an analysis center where a team of professional forensic analysts go through it with a fine tooth comb, reading all of the contents and looking even at fragments of deleted data, this is a step far beyond what a "routine" search of physical goods at the border consists of. It should require some sort of suspicion on the part of customs agents and should not be done at random.

Finally, a court has understood the issue well enough to see the distinction between a cursory search through a computer system and a forensic investigation of a computer system and has insisted upon reasonable suspicion in the later circumstance. This is extremely close to the balance first proposed by Mark Rasch in a SecurityFocus column in 2008.

This is probably the best result that civil liberties advocates can hope for under our current border search doctrine. I think it puts searches of electronics in line with the overall doctrine as it exists right now. I therefore see it as a major victory for privacy rights. A result that is more protective of civil liberties than this would require more fundamental changes to our ideas about border searches in general, rather than a specific ruling about electronics.

For example, the EFF states: "We wish it was the probable cause standard, but we’ll take the reasonable suspicion standard in lieu of no standard at all..." I don't think this is terribly realistic. As far as I know, no search at the border, no matter how intrusive, currently requires probable cause. One would need to first establish the circumstances under which probable cause would be required for a border search in order to then argue that searches of electronics fit into that circumstance.

Frankly, I'm not totally happy with the standard set by this ruling either. I don't see any reason that customs officials need to look at the files in my hard drive or read my browser history absent some ... [ Read More (0.9k in body) ]