Recognizing privacy rights in the digital age

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Court Limits Border Searches of Electronic Devices
By Cristina Silva, March 9, 2013

A federal appeals court ruled Friday that Border Patrol agents must have reasonable suspicion of criminal activity before conducting comprehensive searches of laptops or other digital devices in what civil liberties activists are calling a significant victory for privacy rights.

The decision by the 9th U.S. Circuit Court of Appeals creates for the first time a broad standard aimed at protecting travelers' most private information from arbitrary searches.

"A person's digital life ought not be hijacked simply by crossing a border," Judge M. Margaret McKeown wrote for the appeals court majority.

The ruling only applies to Border Patrol agents operating within the 9th Circuit, which includes the U.S.-Mexico border along Arizona and California.

The court did not define what constitutes a comprehensive search, and it's likely Border Patrol agents will still conduct superficial reviews of computers, thumb drives, compact disks, cellphones, cameras and other electronic devices during border stops.

Legal observers expect both sides will appeal the decision to the U.S. Supreme Court. The federal government insists border agents don't need reasonable suspicion to search electronic devices for hidden and deleted files.

The case centered on Howard Cotterman, a U.S. citizen whose laptop was seized at the Arizona-Mexico border in 2007. After a months-long review, federal investigators found hundreds of hidden child pornography files on Cotterman's computer, including images of him molesting a young girl, the court decision states.

A grand jury had indicted Cotterman for offenses related to child pornography, but a district court deemed the search illegal and suppressed evidence. The Fourth Amendment prohibits "unreasonable searches and seizures."

The appeals court ruled that federal agents had reasonable suspicion based on a 15-year-old child molestation conviction against Cotterman and because Mexico is known as a sex tourism destination.

Bill Kirchner, a Tucson lawyer representing Cotterman, declined to discuss the specifics of his client's case other than saying his criminal history was not sufficient grounds for reasonable suspicion.

In its ruling, the appeals court noted that the intrusive nature of forensic searches of electronic devices triggers the reasonable suspicion requirement.

Under federal policy, investigators can detain electronic devices for months without cause. The forensic reviews often uncover password-protected and deleted files.

"It's definitely a move in the right direction in terms of recognizing privacy rights in the digital age," said Sharon Bradford Franklin, a lawyer with the Constitution Project, which had filed an amicus brief in the case supporting new privacy standards.

Nearly 7,000 people had their electronic devices searched by border agents from 2008 to 2010, according to the Constitution Project.

The U.S. Attorney's Office in Arizona declined to comment on the case.

In a dissenting opinion, Judge Consuelo Callahan said the court's decision flouted "more than a century of Supreme Court precedent, is unworkable and unnecessary and will severely hamstring the government's ability to protect our borders."

But Hanni Fakhoury, a staff attorney with the Electronic Frontier Foundation, said reasonable suspicion is a far cry from probable cause, which would require Border Patrol agents to obtain a warrant before fishing for hidden digital files.

The foundation had filed an amicus brief urging the court to rule that forensic searches of electronic devices at the border should never be performed without reasonable suspicion.

"It's still a very lax standard," Fakhoury said. "It still allows law enforcement to do their job and keep us safe."

Kirchner said it was likely he would appeal the decision. He said privacy advocates should be alarmed that the ruling only applies to exhaustive searches, not superficial content reviews.

"They can take your iPhone, they can take your Kindle, they can take anything they want and keep it and search it for a non-forensic search," Kirchner said.
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