Did you know that, until recently, whenever you travel internationally, your smartphone, Kindle, computer, or other electronic device could be subject to a forensic search for no reason at all? In 2009 the Department of Homeland Security published policy authorizing its agents to conduct warrantless, suspicionless searches of computers and other digital media crossing the border. In other words, the Department of Homeland Security could forensically search your phone, computer, or your kid’s electronic device even if they didn’t suspect you of doing anything wrong. The policy was supposed to fall within a longstanding exception to the 4th Amendment protection against unreasonable searches and seizures – the border search doctrine. Noting that technology has the power to “shrink the realm of guaranteed privacy,” the 9th Circuit ruled en banc to limit the power of the government to do so. The Court held that agents of the Department of Homeland Security now must demonstrate that they have a reasonable suspicion of criminal activity before they may conduct a forensic search of laptop computers, smartphones, or other electronic devices crossing the border. As a practical matter, however, the Court noted that its ruling would not have significant practical effect, since “as a matter of common sense and resources, it is only when reasonable suspicion is aroused that such searches typically take place.”
See United States v. Cotterman, 9th Circuit (en banc) No. 09-10139, March 8, 2013.