United States of America v. Michael Timothy Arnold

Brief for Amici Curiae Association of Corporate Travel Executives & Electronic Frontier Foundation in Support of Appellee's Petition for Rehearing En Banc

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On April 21st, the Ninth Circuit held in United States v. Arnold that the Fourth Amendment does not require government agents to have reasonable suspicion before searching laptops or other digital devices at the border, including international airports. Customs and Border Patrol are likely to use the opinion to argue that almost every property search at the border is constitutionally acceptable.

EFF filed an amicus brief in the case, arguing that laptop searches are so revealing and invasive that the Fourth Amendment requires agents to have some reasonable suspicion to justify the intrusion. Not only are laptops capable of storing vast amounts of information, the information tends to be of the most personal sort, including letters, finances, diaries, photos, and web surfing histories. Prior border search cases distinguished between "routine" suspicionless searches and invasive "non-routine" searches that require reasonable suspicion. Our amicus brief and the lower court opinion relied on these cases to say that the government must also have some cause to search laptops. The Ninth Circuit panel rejected our argument that the privacy invasion resulting from searching computers is qualitatively different from, and requires higher suspicion than, searching luggage or other physical items.

The defendant has time to petition the Ninth Circuit to rehear the case en banc, and the Court might agree to do so. The panel included a District Court judge sitting by designation.

This is EFF's Amici Brief supporting a rehearing en banc.

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Reference Info:Appellate Brief | Federal, 9th Circuit | United States


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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