In April, I discussed the Ninth Circuit decision, U.S. v. Arnold, for the proposition that reasonable suspicion is not required for a laptop search at an international airport (i.e., a border).

Today, The Washington Post has published an editorial entitled, Search and Replace, arguing that Congress needs to set the rule for how border agents can delve into travelers’ laptops.  The Post points out that the Department of Homeland Security has expanded the the broad discretion of the border exception to domestic travelers’ laptop computers and other electronic devices, noting that two federal appeals courts have upheld the same.

Given the confidential nature of client data, privileged data,1 corporate intellectual property and personal data and given the numerous data breaches that have occurred because of mishandling by government agencies, both data encryption and routine data backups (to a separate repository) seem well advised.


1 This could include, for example, attorney client privilege, work product privilege, Privacy Protection Act privilege (for journalists), inter alia.