September 21, 2011 | By Hanni Fakhoury

EFF To Appeals Court: Border Is Not An “Anything Goes” Zone

EFF has long been committed to helping international travelers protect their electronic devices and digital data at the U.S. border. We're continuing to push for some legal limits on the government’s sweeping authority to search electronic devices at the border with an amicus brief we recently filed along with the National Association of Criminal Defense Lawyers (NACDL), urging the Ninth Circuit Court of Appeals to rehear and reverse its disturbing decision in United States v. Cotterman (pdf).

Cotterman was coming into the United States from Mexico at the Lukeville Port of Entry in Arizona. Without suspecting he was carrying anything illegal, customs officers detained him at the border for 8 hours before letting him enter the country. The agents confiscated two laptops and a digital camera, and took them 170 miles away to Tucson for forensic examination. The next day, without a warrant or any suspicion that the electronic devices contained anything illegal, agents imaged three hard drives on the computers and reviewed pictures on the digital camera. After two days of forensic examination, the agents ultimately found child pornography on the computers.

The appellate court found the three-day search and seizure reasonable under the Fourth Amendment, despite the absence of any individual suspicion of wrongdoing or a search warrant. A dissenting judge warned that the decision “gives the Government a free pass to copy, review, categorize, and even read all of that information in the hope that it will find some evidence of any crime.”

In our amicus brief, written by Michael Price and Malia Brink of the NACDL, we urge the court to reconsider its decision, which we caution leads to a border where government officials – not the Constitution – dictate the legal boundaries of a search. The Fourth Amendment, while relaxed at the border, demands more than just a free pass for the government to search whatever it wants for no reason at all.

While we wait and hope the court reverses its decision, check out our most recent guide to protecting electronic devices and data at the U.S. border to learn about the affirmative steps you can take to keep your data safe and private.

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