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 longer than they need to in order to completely copy your hard drive, given their available resources. While reasonable, a court ruling that requires the government to respect individuals property rights by not holding onto their property longer than necessary will do little to address the significant privacy problems that these searches raise. It is, nevertheless, important to prevent unreasonably long seizures of equipment without suspicion from being used as an punitive measure by the executive against people who express disfavored points of view.

Here is where the ruling gets interesting:

“Although the agents may not need to have any particularized suspicion for the initial search and seizure at the border for the purpose of the Fourth Amendment analysis, it does not necessarily follow that the agents, as is alleged in the complaint, may seize personal electronic devices containing expressive materials, target someone for their political association and seize his electronic devices and review the information pertinent to that association and its members and supporters simply because the initial search occurred at the border.

What the court concludes is that although the Fourth Amendment may not save you from an indepth analysis of your laptop at the border, if the reason that the police are searching your laptop is specifically because of your First Amendment protected speech, you may have a valid First Amendment complaint against them.

This question will go to trial. However, I am not convinced that real security against what I consider to be unreasonable searches at the border can be gained merely through a ruling that prohibits searches that are motivated by First Amendment activities. This will merely lead to a situation in which the government is careful not to reveal the reasons for its seizure of electronic devices by not questioning the suspect but merely seizing their electronics and sending the people on to their destinations. The victims will know why they were stopped, but they won't be able to prove it, and the government will gain valuable intelligence from searching their devices.

People mentioned in this story include Moxie Marlinspike and Jacob Appelbaum, both of whom have been reportedly flagged for extra screening by the TSA at airport security checkpoints. (TSA searches at airport security checkpoints have no relationship to Customs searches at border crossings. This is a different kind of search by a different government agency that operates under a different legal framework.) Neither of these people is a credible risk to the security of flights. They are not being flagged for that reason. However, the right that the TSA has to search people at the airport is limited specifically to protecting the security of flights. It is unconstitutional for the TSA to search people without a warrant for reasons that are unrelated to the security of flights. And yet, these two individuals have been regularly and publicly subjected to this additional screening when there is clearly no relationship between them and risks to flight security. In other words, the TSA has performed repeated unconstitutional searches of these two individuals and this has been widely reported in the press. However, there is nothing that they can do about it, because they cannot document why the TSA placed them on a list for enhanced screening and they cannot prove that this screening is unrelated to the TSA's constitutional authority.

Similarly, a ruling that Customs cannot target people for their constitutionally protected speech will not put an end to the obvious abuse of authority that is occurring in these cases. The government will simply be more discrete about it's motives.

Furthermore, there might be a tangible concern that reasonable suspicion might hinge on protected speech. A terrorist might be identified because of their speech and because of their associations. I suspect this is exactly where the government will go in their arguments against a ruling in favor of David House.

The only way to ensure that searches performed at the border are reasonable is to require some minimal standard of suspicion for intrusive searches. One approach might be to allow a cursory look at electronics that is the equivalent of the sort of "routine" look that the contents of a briefcase might receive at a border crossing, but in depth electronic analysis and seizure should AT MINUMUM require that some sort of reasonable suspicion be established.

Whether this is a policy or a constitutional matter is mostly academic. The fact is that both CBP and TSA are actively abusing their authority in these specific publicly reported cases to target people who are neither smugglers nor risks to the security of flights. This abuse must stop and a framework must be developed that will prevent this kind of abuse in the future.

Politically Motivated Border Searches Could Be Unconstitutional, Judge Rules | Threat Level | Wired.com