March 11, 2013
Ninth Circuit Applies The Fourth Amendment to Border Search of Laptop
The pesky problem of searching electronic devices at the border was addressed by the Ninth Circuit last week. The case is United States v. Cotterman (09-10139). Cotterman and his wife were returning from a trip to Mexico when they were stopped by agents at the Arizona-Mexico border. Cotterman was flagged by the Treasury Enforcement Communications System (TECS) as a convicted sex offender. This hit caused agents to examine his laptop and other electronic devices he carried. The initial examination showed nothing, though some of the files on the laptop were encrypted. Cotterman refused to supply the password. Agents examined the laptop using forensic software and revealed multiple images of child pornography, some of which had been recovered from deletion.
Cotterman was indicted. He filed a motion to suppress. The magistrate judge filed a report finding the forensic search was an extended border search that required reasonable suspicion. The MJ concluded that the TECS hit combined with password protected files was suspicious but not enough to give rise to a reasonable suspicion of criminal activity. The District Judge adopted the report and granted the motion to suppress.
The Ninth Circuit, en banc, reversed, concluding that the forensic examination of the laptop was reasonable under the circumstances. These included the TECS hit, Cotterman’s frequent travels to a country known for sex tourism, the use of encrypted files, and the fact that the alert was generated through a program called Operation Angel Watch which was aimed at combatting sex tourism by identifying sex offenders. The case is noteworthy because the Ninth Circuit applied the Fourth Amendment to a border search. Courts have traditionally held that a border search is an exception to the Fourth Amendment.
The Ninth Circuit made statements to the effect that password protected files by themselves do not raise suspicion. Most people, including travelers, tend to live a digital life where devices can store fairly large amounts of information or access it through cloud computing:
The Court basically said that technology matters and the inquiry will always be the reasonableness of the search based the circumstances. Some authors are praising the Court for the recognition of Fourth Amendment privacy rights even though Cotterman failed in suppressing the evidence. Here are stories from TechDirt and Boing Boing to that effect. I’m not so sure I share that view. Privacy is always valued, though I can see the Supreme Court stating that the Fourth Amendment does not apply at the border and allowing the forensic search and evidence at trial, assuming the issue gets before the Court. [MG]
With the ubiquity of cloud computing, the government’s reach into private data becomes even more problematic. In the “cloud,” a user’s data, including the same kind of highly sensitive data one would have in “papers” at home, is held on remote servers rather than on the device itself. The digital device is a conduit to retrieving information from the cloud, akin to the key to a safe deposit box. Notably, although the virtual “safe deposit box” does not itself cross the border, it may appear as a seamless part of the digital device when presented at the border. With access to the cloud through forensic examination, a traveler’s cache is just a click away from the government.