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Sunday, May 19, 2024 | Back issues
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9th Circuit Gets Tough on Border Gadget Searches

(CN) - Border agents need reasonable suspicion to conduct a "forensic examination" of laptops or other digital devices belonging to travelers they stop, the full 9th Circuit ruled Friday.

Several dissenting judges objected to the decision, calling it a significant departure from current understanding of the Fourth Amendment's border exemption, and one that could jeopardize national security.

While Judge M. Margaret McKeown called the ruling a "watershed" case of the digital age, its alleged significance does not help the defendant at the center of it all, whose motion to suppress met rejection from the 11-judge, en banc appellate panel.

Agents investigating sex tourism in Mexico detained and searched Howard Cotterman in 2007 at the Port of Entry in Lukeville, Ariz. His well-used passport, and the fact that he carried with him a laptop and digital camera, combined with his 1992 conviction for having sex with a minor, suggested to investigators that he could be involved in sex tourism. Unable to access many of the password-protected files on Cotterman's computer, the agents took it 170 miles to Tucson for a more thorough search.

Investigators eventually found some 378 images of child pornography hidden away on Cotterman's laptop, many of them depicting Cotterman sexually molesting the same child, a girl who appeared to be between the 7 to 10 years old.

After fleeing to Australia, Cotterman was extradited and charged in Arizona for producing, transporting and possessing child pornography. He later tried to suppress the evidence found on his laptop by claiming that the search had required reasonable suspicion because it was an "extended border" search.

U.S. District Judge Raner Collins in Tucson agreed. While the agents could seize and search the laptop at the border without reasonable suspicion, Collins said their transportation of the device to Tucson and two-day probe constituted an extended border search.

In the case's first appeal, the 9th Circuit reversed, finding that the search did not require reasonable suspicion. Later, the Pasadena-based federal appeals court agreed to rehear the matter en banc.

The full panel agreed on Friday that the details of Cotterman's specific case did not warrant suppression because investigators here had reasonable suspicion for the search. By requiring such proof in the first place, however, the majority took a harder line on the border doctrine than the three-judge panel had taken. They said the impetus for that hard line is the expanded use digital devices by international travelers.

"Laptop computers, iPads and the like are simultaneously offices and personal diaries," McKeown wrote for the majority. "They contain the most intimate details of our lives: financial records, confidential business documents, medical records and private emails. This type of material implicates the Fourth Amendment's specific guarantee of the people's right to be secure in their 'papers.'"

"A person's digital life ought not be hijacked simply by crossing a border," she added. "When packing traditional luggage, one is accustomed to deciding what papers to take and what to leave behind. When carrying a laptop, tablet or other device, however, removing files unnecessary to an impending trip is an impractical solution given the volume and often intermingled nature of the files. It is also a time-consuming task that may not even effectively erase the files."

At the same time, a forensic search of a device can reveal each and every file, even deleted ones.

"Such a thorough and detailed search of the most intimate details of one's life is a substantial intrusion upon personal privacy and dignity," McKeown wrote. "We therefore hold that the forensic examination of Cotterman's computer required a showing of reasonable suspicion, a modest requirement in light of the Fourth Amendment."

That element of the ruling elicited vehement dissent from three judges.

"Whether it is drugs, bombs, or child pornography, we charge our government with finding and excluding any and all illegal and unwanted articles and people before they cross our international borders," Judge Consuelo Callahan wrote, joined in full by Judge Richard Clifton and partially by Judge Milan Smith.

"Accomplishing that Herculean task requires that the government be mostly free from the Fourth Amendment's usual restraints on searches of people and their property," Callahan added. "Today the majority ignores that reality by erecting a new rule requiring reasonable suspicion for any thorough search of electronic devices entering the United States. This rule flouts more than a century of Supreme Court precedent, is unworkable and unnecessary, and will severely hamstring the government's ability to protect our borders."

Though the majority's effective "bright-line rule" says that "'forensic examination' of electronic devices 'at the border requires reasonable suspicion," they neglected to define what "forensic" means in this context, inviting reversal, Callahan argued.

"Even if the majority means to require reasonable suspicion for any type of digital forensic border search, no court has ever erected so categorical a rule, based on so general a type of search or category of property, and the Supreme Court has rightly slapped down anything remotely similar," she wrote. (Emphasis in original.)

In his own dissent, Judge Smith contended that the majority was doubly wrong - first for requiring reasonable suspicion for the search and then for finding that the agents in Cotterman's case had met that high standard.

"The majority's opinion turns primarily on the notion that electronic devices deserve special consideration because they are ubiquitous and can store vast quantities of personal information," he said. "That idea is fallacious and has no place in the border search context."

Judges Clifton and Callahan joined the first part of Smith's dissent."Separately, but importantly, the majority's application of the reasonable suspicion requirement to Cotterman is also troubling," Smith continued in the second part of his dissent. "The majority purports to be concerned with travelers' 'personal privacy and dignity,' but its determination that reasonable suspicion exists under the exceedingly weak facts of this case undermines the liberties of U.S. citizens generally - not just at the border, and not just with regard to our digital data - but on every street corner, in every vehicle, and wherever else we rely on the doctrine of reasonable suspicion to safeguard our legitimate privacy interests."

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