On April 21, 2008, the U.S. Court of Appeals for the Ninth Circuit handed down its decision in United States v. Arnold. The court held that the Fourth Amendment did not require U.S. Customs and Border patrol agents to have reasonable suspicion before undertaking a search of an individual’s laptop or other electronic devices. This decision marks a significant development in the arena of personal privacy and civil liberties and may prove to have far-reaching effects on the business community.

The Ninth Circuit, noting the government’s interest in border control, determined that the search of digital and electronic devices did not infringe upon an individual’s protected privacy rights, even if conducted without reasonable suspicion. The court found that such a search was not “particularly offensive” and refused to carve out a First Amendment exception.

Subsequently, on July 16, 2008, U.S. Customs and Border Protection issued a new policy written regarding border searches of digital information and devices. The new guidelines make it clear that customs agents may examine electronic information at border crossings and border-equivalents such as international airports. According to the guidelines, agents:

  • Need not have individualized suspicion before conducting a search;
  • May detain documents and electronic devices without a warrant;
  • May conduct the search on-site or remove the devices and conduct the search off-site; and
  • May share a copy of information gathered with other agencies and entities.

The guidelines make specific mention of business information and material protected by the Attorney-Client privilege. While the new guidelines acknowledge the sensitive nature of confidential information, it is clear that Customs officials may still be able to search these sensitive documents.