As a general rule, the Fourth Amendment of the U.S. Constitution requires government-conducted searches and seizures to be supported by probable cause and a warrant. Federal courts have long recognized that there are many exceptions to this presumptive warrant requirement, one of which is the border search exception. The border search exception permits government officials, in most “routine” circumstances, to conduct searches based on no suspicion of wrongdoing whatsoever. On the other hand, warrantless searches are permissible in some “non-routine” and particularly invasive situations only when customs officials have “reasonable suspicion” to conduct the search.
The federal courts have universally held that the border search exception applies to laptop computer searches conducted at the border. Although the Supreme Court has not directly addressed the degree of suspicion needed to conduct a warrantless laptop border search, the federal appellate courts that have addressed the issue appear to have concluded that reasonable suspicion is not needed to justify such a search. The Ninth Circuit, in United States v. Arnold, explicitly held that reasonable suspicion is not required to conduct a warrantless search of a laptop at the border.
Two related bills introduced in the 110th Congress, H.R. 6702 and H.R. 6588, would impose more rigorous standards for laptop searches than those the federal courts have determined are constitutionally required.
Source: Congressional Research Service (via Federation of American Scientists)
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