I'm linking to an essay by Jennifer Granick, which I first saw last night through the haze of new years libations. The essay was the first news I'd heard of a ruling in the ACLU's case over border searches of electronics, and given that the ACLU appears to have lost the case, I was surprised by the apparent optimistic tone in Granick's essay. In the light of day I read the decision, and it actually does offer a ray of hope.

Basically, the court bought into the government's current argument about border searches, which is that there is some level of suspicion involved in forensic examination of laptops and other electronics, because the government doesn't have the resources to do it randomly, but creating a legal requirement for some standard of suspicion would be too much of an operational burden on the government.

Judge Korman then goes on to say, “I would agree with the Ninth Circuit that, if suspicionless forensic computer searches at the border threaten to become the norm, then some threshold showing of reasonable suspicion should be required.”  Korman just doesn’t think that’s factually true right now.

Thats an important qualification. It removes from the table the threat that automated forensic inspection of electronics will become operationalized at some point. It also pretty much puts CBP on notice that they should avoid the random use of forensic searches. These things are victories.

I'm still not entirely comfortable with the border search regime as it stands, but the fact is that the courts are going to do very little to carve out a right to privacy in this context absent action from the other two branches.

The meaning of the latest border search decision