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9th Circuit Revives Privacy at the Borders, Protects Your Gadgets

By William Peacock, Esq. | Last updated on

Just when we declared the Fourth Amendment to be (near) dead, the Ninth steps in and resurrects it. 

Last month, we bemoaned the lack of privacy at border checkpoints. According to the Department of Homeland Security, the border extends 100 miles inland, meaning two out of every three Americans lived in what the ACLU coined "the Constitution-free zone." The DHS's stance on searches was that the Border Search Exception allowed them to conduct searches on anything, at any time, for any reason within that zone.

And until Friday, they were correct.

On Friday, in United States v. Cotterman, an en banc Ninth Circuit reversed its earlier panel's decision, and a whole lot of case precedent, in announcing that invasive forensic searches of electronics require reasonable suspicion. In differentiating electronic devices from luggage, the court stated:

Laptop computers, iPads and the like are simultaneously offices and personal diaries. 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." The express listing of papers "reflects the Founders' deep concern with safeguarding the privacy of thoughts and ideas -- what we might call freedom of conscience -- from invasion by the government."

It wasn't all good news for the pedophile defendant in this case, whose computer contained child pornography -- including images of himself and an unidentified minor. The court held that his prior sex crime convictions, frequent international travel, his crossing from a country known for sex tourism, and his large collection of electronic equipment all gave rise to reasonable suspicion of criminal behavior and justified the search, which included seizing his laptop and transporting it 170 miles away to a forensic laboratory.

The Cotterman decision essentially sets up a new version of the Border Search Exception in Ninth Circuit states. While luggage, vehicles, and physical property may be searched under the exception without justification or suspicion, deeper electronic searches into the contents of one's computer, tablet, or smartphone will require reasonable suspicion of a crime, which though less than the warrant requirement outside of the border, should still serve the balancing interests of homeland security versus Fourth Amendment privacy.

If you'd like to know more about this landmark decision, there is a lot more discussion, including the passionate dissents, on our Ninth Circuit blog.

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