Circuit Creates Electronics Exception to Border Search Exception
The existing Border Search Exception, which is quite handy for digging through terrorists' and drug smugglers' luggage, doesn't exactly fit with the realities of modern life. Whereas we once could dig though someone's belongings in an hour or two, the Cotterman case presented a different scenario: a convicted pedophile caught with images of himself and an underage girl after his laptop was seized at the border and examined at a laboratory 170 miles inland.
If it sounds like a tough and important case, that's because it is. So important, in fact, that we sent our best people to live-blog the oral arguments.
The initial panel ruled against Cotterman, and for invasive computer searches, holding that the Border Search Exception allowed electronic searches without a warrant, without reasonable suspicion, and without any justification whatsoever. An en banc Ninth Circuit reversed course on Friday after a discussion of the realities of modern electronics.
Computers are not suitcases. A single hard drive can carry an entire library's worth of material - far more than was envisioned by the original exception. Our laptops, phones, and tablets have become repositories of private information, from diary entries and medical records to school projects and blog posts.
The court also noted another significant difference between a suitcase and a hard drive: you can easily choose what to carry in a suitcase. A laptop, on the other hand, typically contains gigabytes of data. Sorting through that before every trip is unfeasible. Plus, even deleted data is often recoverable through forensic analysis.
What's a court to do when modern realities no longer fit age-old rules? An exception to an exception, of course.
The court's compromise was to require reasonable suspicion of illegal activity before one's laptop or similar device can be forensically searched -- "a modest requirement in light of the Fourth Amendment." Note the difference between examining easily-accessible files and scanning deleted sectors of the hard drive; the line is somewhere in between.
Judge Callahan dissented vehemently, arguing that the need for secure borders trumped privacy concerns, and stating:
This [reasonable suspicion] 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.
She also pointed out that SCOTUS has only once required reasonable suspicion in a border search, in a case where a suspected drug smuggler was detained for twenty-four hours and given a pregnancy test and rectal examination.
Judge Smith chimed in as well, stating:
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. That idea is fallacious.
He also had much to say about court's application of reasonable suspicion to Cotterman:
The majority['s] determination that reasonable suspicion exists [here] 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.
- United States v. Cotterman (Ninth Circuit Court of Appeals)
- 9th Circuit Revives Privacy at the Borders, Protects Your Gadgets (FindLaw's Technologist)
- DHS Still Okay With Warrantless, Suspicionless Searches at 'Border' (FindLaw's Technologist)
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