Every computer border search requires case-by-case reasonableness, DC court holds

[Commentary] Imagine you’re flying from the United States to a foreign country and you’re carrying a laptop. Federal agents stop you on the jetway as you’re about to board your flight. They want to take your computer and search it. Can they? And if they can do that, what are the limits on how much they can search, for how long, and where? Lower courts have divided on the question. Some courts have concluded that the “border search exception” that the Supreme Court has applied for searches of physical objects should also apply equally to computers. Under that approach, agents can seize and search computers at the border (or at its “functional equivalent,” such as at international airports where passengers are boarding international flights) apparently without limit.

The Ninth Circuit has adopted a different approach, ruling that agents need “reasonable suspicion” to seize and search a computer at the border if the search is a “forensic” search but not if it is a “manual” search. May 8, Judge Amy Berman Jackson of the DC District Court adopted a third approach in a new case called "United States v. Kim". The opinion holds that that every computer search at the border must be justified as reasonable under the totality of the circumstances. After concluding that the search in this case was not reasonable under that test, she suppressed the evidence. I think Judge Jackson’s decision is highly problematic. I won’t be surprised if Justice Department appeals it, as it raises a really important set of questions and answers them in some unusual ways. Will the Court of Appeals agree with Judge Jackson? Time will tell.

[Orin Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School]