In rejecting Arnold's case, the Ninth Circuit advanced a trend that has seen laptops receive less and less protection at the border. In an earlier Ninth Circuit case, the court first applied the border search exception to laptops and determined that border officials were justified in conducting a warrantless search.
In a case out of the Fourth Circuit, the court agreed with the Ninth Circuit, and also held that there was not First Amendment shield to the border search exception when applied to laptops.
Neither case dealt with the question of whether or not a laptop search requires reasonable suspicion, however, since both courts determined that the searching officers had sufficient suspicion to conduct the search – regardless of whether it was necessary or not.
Now, the Ninth Circuit has removed the possibility of a reasonable suspicion protection for computer searches at the border, and opened up the possibility that any traveler could have their computer randomly searched when entering the US.
This raises troubling possibilities. Of course, it is highly desirable to catch people bringing child pornography across the border, but random searches of innocent travelers could reveal sensitive – but not necessarily illegal – personal information.
This decision equates computers to a box or a briefcase, but not many briefcases allow you to store all of your written correspondence, family pictures, passwords, credit card numbers, tax returns, medical information, work product, trade secrets, personal journal entries, etc. in the same place.
Even if a person has nothing to hide, it is disconcerting that border agents can view so much personal information about them simply because they brought it across a border.
There's a possibility that this decision could be overturned upon rehearing by the entire court, and there's even a remote possibility that the issue will eventually make it to the Supreme Court. Neither of these is likely in the near future.
So for the time being, if you plan on crossing the US border into the Ninth Circuit, it's probably best to just leave the laptop at home. ®