Friday, April 25, 2008

Ninth Circuit Rules U.S. Can Search Laptop Hard Drives Without Reasonable Suspicion

In a long-awaited decision the Ninth Circuit Court of Appeals held on Monday, April 21, 2008, in United States v. Arnold that a U.S. Customs and Border Protection agent may search the hard drive of a laptop carried by a traveler entering the United States even though the agent lacks any reasonable suspicion that the laptop's hard drive contains illegal data.

The trial court in the case had granted the defendant's motion to suppress evidence of illegal pornography found on his laptop on the basis that laptop searches are not the same as searches of luggage and require that the customs agent have at least a reasonable suspicion of illegal activity before conducting a laptop search.

The government appealed to the Ninth Circuit, and in an unfortunate and misguided opinion by Judge Diarmuid F. O’Scannlain the Ninth Circuit reversed the trial judge and upheld the legality of the search. These excerpts from the opinion illustrate the court's decision:

We must decide whether customs officers at Los Angeles
International Airport may examine the electronic contents of
a passenger’s laptop computer without reasonable suspicion.

[The court then reviewed the case law on border searches]

Therefore, we are satisfied that reasonable suspicion is
not needed for customs officials to search a laptop or other
personal electronic storage devices at the border.


We are persuaded by the analysis of our sister circuit and
will follow the reasoning of Ickes [an earlier case decided
by the Fourth Circuit Court of Appeals] in this case.


For the foregoing reasons, the district court’s decision to
grant Arnold’s motion to suppress must be


The state of the law in the United States as it has developed to date is that two circuit courts of appeal have upheld laptop searches without reasonable suspicion, no circuit courts have ruled to the contrary and the U.S. Supreme Court has not yet considered the question (and it may be years before the Supreme Court does so).

The Customs and Border Protection service is thus entirely free to search your laptop when you enter the United States for any reason or for no reason or at random. Business travelers to the U.S. must recognize this risk and adjust their conduct accordingly.