Finally, Some Limit to Electronic Searches at the Border
In an important new decision, the Ninth Circuit Court of Appeals created the first explicit limits on the government's ability to search electronic devices at the border. The court's decision in United States v. Cotterman (PDF) establishes that government agents must have "reasonable suspicion" before conducting a forensic examination of a computer at the border.
In 2007, Howard Cotterman attempted to enter the United States from Mexico through the Lukeville port of entry in Arizona. Border agents detained Cotterman for 8 hours while they searched, without a warrant, two laptops and a digital camera he was carrying. Ultimately wanting to do a more invasive examination of the devices, the agents let Cotterman enter the U.S. but held onto his electronic devices and took them 170 miles away to Tucson, where they continued their warrantless search for two days.
Ultimately the agents found child pornography on the computers and Cotterman was arrested and indicted. The trial court suppressed the evidence, finding the warrantless search violated the Fourth Amendment. The government appealed to a three judge panel of the Ninth Circuit who reversed (PDF), finding the search valid under the government's broad authority to search at the border without a warrant or any individualized suspicion. Cotterman asked for the entire Ninth Circuit to review the case en banc. Together with the National Association of Criminal Defense Lawyers, we filed an amicus brief (PDF) asking the court to review this dangerous precedent, which it agreed to do last summer.
At issue was just how far the "border search doctrine" extends. The Fourth Amendment requires government searches to be "reasonable" and that typically means a warrant is required before the government can search. But at the border, the Supreme Court explained in United States v. Ramsey that searches are reasonable "pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country." That means at the border, no warrant or even individualized suspicion is necessary for the government to search. While the Supreme Court has hinted that this broad search authority may have limits, it has never explicitly said what those limits are other than to find body cavity searches require "reasonable suspicion" that the traveller is carrying contraband in her body, and noting that especially "destructive" or "offensive" searches may not be allowed. What these terms mean, however, has never been explained by the high court. And while even the Ninth Circuit itself has proclaimed the border is not an "anything goes" zone, it has previously approved of expansive computer searches in United States v. Arnold.
As a result of this broad searching authority, the border has become a place where electronic privacy rights are often surrendered as a cost of entering into the country. Unsurprisingly, that's exactly how the government wants it. Just weeks ago, the Department of Homeland Security issued a Civil Rights/Civil Liberties Impact Assessment on border searches of electronic devices. The report is secret — and the ACLU is suing to get it under the FOIA — but an executive summary (PDF) was released publicly. Unsurprisingly, DHS wants to retain the power to search and seize electronic devices without any suspicion of wrongdoing because even that modest requirement "would be operationally harmful without concomitant civil rights/civil liberties benefits."
Thankfully, the Ninth Circuit rejected this. "A person’s digital life ought not be hijacked simply by crossing a border" it wrote. Even if DHS doesn't want a "reasonable suspicion" standard for electronic searches at the border, it's now stuck with one in the Western United States (PDF), including along the Mexico-U.S. border in California and Arizona. In explaining its rationale, the Ninth Circuit noted that in the past a person could only pack a limited amount of their things in a suitcase with them before travelling abroad. But with advances in technology, people are now storing vasts amount of their personal information — data like contacts, emails, text messages, photos, financial records — on portable devices like smartphones, laptops and tablets. "It is as if a search of a person’s suitcase could reveal not only what the bag contained on the current trip, but everything it had ever carried." A "reasonable suspicion" standard for forensic searches ensured travellers wouldn't be subject to a "computer strip search" every time they crossed the border.
This is the first time a court has placed a limit on the government's ability to search an electronic device at the border. Cotterman does leave open one important question: what is a "forensic examination?" Does it include invasive computer searches, done with trained professionals who mirror and image the entire contents of a computer, including deleted information? Or does it also include more superficial searches, such as an officer turning on a cell phone and quickly skimming through a list of contacts or text messages? We'd like to see it include both of these types of searches. Even the simple act of scrolling through a contact list or IM chat is invasive, and shouldn't be done without some indication that criminal activity is occurring.
After establishing this new rule, the court turned to determining whether officers had "reasonable suspicion" to examine Cotterman's computer. "Reasonable suspicion" means an agent has specific and articulable facts demonstrating a reasonable likelihood that criminal activity is occurring. Importantly, the court found the isolated act of password protecting files or an entire hard drive did not support a finding of "reasonable suspicion." But the rest of its "reasonable suspicion" analysis leaves much to be desired. It found "reasonable suspicion" existed because Cotterman (1) had a 15-year-old prior conviction for a sex offense; (2) travelled abroad frequently; (3) was returning from a country known for "sex tourism," Mexico; and (4) had a "collection of electronic equipment." These facts capture a large number of people and, we think, don't rise to the level of particularized suspicion legally sufficient under the law. That's why we'd prefer the more stringent "probable cause" standard, which requires law enforcement to show it is more likely than not that evidence of a crime will be found in the place to be searched.
But ultimately, Cotterman is a step in the right direction towards ensuring our historic Fourth Amendment protections keep pace with modern technological advances, and an important decision in the growing challenges to the government's border search powers. It's doubtful this will be the last judicial word on the case. Cotterman's lawyer has already indicated he will likely seek Supreme Court review. And while Professor Orin Kerr has speculated that the government may not be able to seek Supreme Court review, you can be sure they're unhappy with this decision and would welcome a chance to have the high court review the case.
In the meantime, people crossing the border in the Ninth Circuit's jurisdiction can breathe a small sigh of relief that their electronic privacy can't be violated as easily as it was before. And for everyone, be sure to check out our guide to protecting your electronic privacy at the border.