Orin Kerr discusses a case that is of special interest these days when some WikiLeaks volunteers or known associates of Pfc Bradley Manning are reporting that whenever they travel, their computers and cell phones are seized and they are
harassed questioned for hours:
Back in 2009, I blogged about a fascinating Fourth Amendment district court decision involving how the border search exception applies to computers, United States v. Cotterman. Cotterman deals with how the government can execute a border search of a computer given that forensic searches of computers can take a long time and require considerable expertise. In particular, can federal agents seize the computer and bring it to the expert, and hold the computer for the travel time and forensic time, while still fitting within the border search exception? Or, to put it another way, if the government seizes a computer at the border, and the law permits an immediate search without suspicion at the border, what are the limits on how long the government can hold the computer and where they can bring it before triggering a suspicion requirement?
Read more on The Volokh Conspiracy.
Under the “Gut Doctrine of Law” to which I adhere (if it feels wrong in my gut, it must be wrong), the government should not be allowed to seize electronics at the border for further inspection without at least meeting the standard for reasonable suspicion. Indeed, I don’t think they should even be allowed to search them without reasonable suspicion. Citizens re-entering their own country should not have to tolerate this “exception” to Fourth Amendment protections.