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(update below)

A United States federal appeals court has ruled suspicionless searches do not violate the Fourth Amendment but border patrol agents do need “reasonable suspicion” in order to conduct forensic examinations of a person’s devices.

The ruling appears to be one that is a small win for privacy, however, the ruling that agents need “reasonable suspicion” actually determined such “suspicion” existed. The dissenting opinion questioned the flawed nature of key conclusions made in the ruling.

The case involves Howard Cotterman, who was with his wife driving home to the US from a vacation in Mexico on April 6, 2007. Cotterman and his wife arrived at Lukeville, Arizona, Port of Entry. A border agent ran Howard’s name in the Treasury Enforcement Communication System (“TECS”) and it returned a hit that indicated Howard was a sex offender. He had been convicted in 1992 of “two counts of use of a minor in sexual conduct, two counts of lewd and lascivious conduct upon a child, and three counts of child molestation.” The hit also suggested he might be involved in “child sex tourism.”

Both Howard and his wife were sent to “secondary inspection,” where they exited their vehicle and left their belongings in their car. The agents believed he was involved in “some type of child pornography” and retrieved two laptop computers and three digital cameras from the car.

According to the ruling, “Officer Antonio Alvarado inspected the electronic devices and found what appeared to be family and other personal photos, along with several password-protected files.” An agent with Immigration and Customs Enforcement (ICE) Pacific Field Intelligence Unit informed an agent in Sells, Arizona, the alert for Howard was “part of Operation Angel Watch, which was aimed at combating child sex tourism by identifying registered sex offenders in California, particularly those who travel frequently outside the United States.” Ultimately, Alvarado was “advised to review any media equipment, such as computers, cameras,or other electronic devices, for potential evidence of child pornography,” and agents left Sells for Lukeville to “detain the Cottermans’ laptops for forensic examination.”

The laptops and one digital camera were driven to an ICE office in Tucson, Arizona, nearly 170 miles away from where the Cottermans were detained. A forensic program copied the hard drives. The hard drives were examined for several hours. Eventually, on April 11, an agent managed to open the password-protected files and found “approximately 378 images of child pornography. The vast majority of the images were of the same girl, approximately 7–10 years of age, taken over a twoto three-year period. In many of the images, Cotterman was sexually molesting the child.”

Cotterman was indicted by a grand jury. He moved to suppress the evidence. A district judge granted the motion. In 2011, the Ninth Circuit Court of Appeals heard an appeal from the government that it could take electronic devices to another location without reasonable suspicion.” In 2012, the appeals court decided to rehear the case.

In reviewing whether the forensic examination did not violate Cotterman’s privacy or Fourth Amendment rights, Judge M. Margaret McKeown stated, “The difficult question we confront is the reasonableness, without a warrant, of the forensic examination that comprehensively analyzed the hard drive of the computer.” McKeown found, ”It is the comprehensive and intrusive nature of a forensic examination—not the location of the examination—that is the key factor triggering the requirement of reasonable suspicion here.”

It was deemed permissible to seize devices and take them away from the border for a search mostly because, consistent with prior case law, “A routine customs search at the ‘functional equivalent’ of the border is ‘analyzed as a border search’ and requires neither probable cause nor reasonable suspicion.” Also, according to McKeown, “Because Cotterman never regained possession of his laptop, the fact that the forensic examination occurred away from the border, in Tucson, did not heighten the interference with his privacy.”

The court concluded:

International travelers certainly expect that their property will be searched at the border.  What they do not expect is that, absent some particularized suspicion, agents will mine every last piece of data on their devices or deprive them of their most personal property for days (or perhaps weeks or even months, depending on how long the search takes)…Such a thorough and detailed search of the most intimate details of one’s life is a substantial intrusion upon personal privacy and dignity.  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.

But, the court did not rule in favor of Cotterman nor is it clear that it adopted a tough standard that will make it less likely that border agents violate citizens’ privacy. It concluded the “examination of Cotterman’s electronic devices was supported by reasonable suspicion and that the scope and manner of the search were reasonable under the Fourth Amendment.”

Judge Milan D. Smith, Jr. dissented, “Reasonable suspicion has no place in property searches at the border, as the Supreme Court has consistently held.” In the dissenting opinion, Smith critiqued the ruling and argued “reasonable suspicion” did not exist:

…[T]he majority fails to consider reasonable suspicion in light of the totality of the circumstances because it dismisses without explanation numerous factors that weigh against a finding of reasonable suspicion in this case…At the time the border patrol agents commenced the second search, 170 miles away from the border, any suspicions they may have initially harbored against Cotterman would have been largely addressed by their interrogations of Cotterman and his wife, which produced nothing suspicious. An initial search of Cotterman’s computer and the digital cameras turned up nothing more than a single password protected file and photos of “whale hunting and various excursions,” all of which corroborated Cotterman’s story about vacationing in Mexico. Also during this initial search, one of the border patrol agents did a records check and discovered that Cotterman’s conviction for the sex offense had occurred more than 15 years ago. Cotterman was fully cooperative and even offered to help the agents access his computer. The majority contends that Cotterman’s offer to help does not weigh against a finding of reasonable suspicion because the agents declined Cotterman’s offer based on the possibility—however slight—that Cotterman could “booby trap” the devices. That the agents were unable to accept Cotterman’s offer, however, does not change the reasonable inference that his offer was a genuine one…

Smith added, “The relevant inquiry here is what suspicion existed after all of Cotterman’s electronics were searched, and he and his wife were interrogated separately, and every piece of evidence obtained corroborated the Cottermans’ story about vacationing in Mexico. The only hint of suspicion remaining at that point—after the initial border search and interrogations—was the single password-protected file, which I agree with the majority is insufficient, by itself, to sustain a finding of reasonable suspicion.”

*

The result of the ruling is the judges appear to have concluded there should be a “reasonable suspicion” standard for forensic examination of devices beyond the initial search at the border to protect at least some of a person’s privacy that has not yet been violated. The ruling also found “password-protected files” should not be considered suspicious. But, the standard for establishing “reasonable suspicion” that led the court to reverse a previous ruling seems to be considerably weak.

There are two cases the American Civil Liberties Union (ACLU) has been pursuing on behalf of individuals, who were subject to suspicionless searches and had their electronic devices seized: one on behalf of Bradley Manning Support Network co-founder David House and the other on behalf of dual US-French citizen Pascal Abidor.

Abidor, according to the ACLU, “had his laptop searched and confiscated at the Canadian border while traveling home to New York on an Amtrak train in May 2010. Abidor, an Islamic Studies Ph.D. student, was questioned, handcuffed, taken off the train and kept in a holding cell for several hours before being released without charge. When his laptop was returned 11 days later, there was evidence that many of his personal files, including research, photos, and chats with his girlfriend, had been searched.”

House was targeted for his lawful association with the Support Network. He was reentering the country and had his laptop and other electronic devices seized. And the DHS obtained a copy of the “complete Support Network mailing list, confidential communications between members of the Steering Committee about strategy and fund-raising activities, the identity of donors, lists of potential donors and their ability to contribute, and notes on meetings with donors including personal observations about those donors.”

In Abidor’s case, the government has argued the Supreme Court does not require a “reasonable suspicion” standard. “‘Strip, body cavity, or involuntary x-ray searches,’ may require reasonable suspicion,” but the Supreme Court has “rejected attempts to extend this exception beyond “highly intrusive searches of the person.” The government also has contended, “Because laptop computers and other electronic devices are considered to be closed containers, courts have repeatedly held that customs officers are ‘entitled to inspect the contents of the [electronic deviced] even absent reasonable suspicion.’”

On March 28, 2012, a government motion to dismiss House’s case was denied, but it had little to do with whether agents had “reasonable suspicion” to search his devices. A judge found, “Requiring reasonable suspicion for all computer searches may ‘allow individuals to render graphic contraband, such as child pornography, largely immune to [a] border search simply by scanning images onto a computer disk before arriving at the border.’…Thus, the level of suspicion required to conduct a search of information carried by a person should not be based on the form in which that information is kept and presented at the border.” It declined to dismiss House’s claim his Fourth Amendment rights were violated because of how long the government held on to his devices when they were seized. (It also found a claim that his First Amendment right to associate was valid.)

It is hard to tell how this might impact future cases or influence the cases the ACLU is pursuing. If anything, it may further confuse judges.

To put this whole issue of suspicionless searches into perspective, according to the ACLU, “Between October 2008 and June 2010, over 6,500 people traveling to and from the United States had their electronic devices searched at the border.  Nearly half of these people were US citizens.” And, “Between July 2008 and June 2009, border agents transferred data found on travelers’ electronic devices to other federal agencies over 280 times. Half of the time, these unnamed agencies asserted an independent basis for retaining or seizing the data.”

The issue is not child pornography. The issue is the standard for searching people who are suspected of having child pornography. Or, more broadly, the issue is not the crimes that a person may have committed or be in the process of committing but rather what suspicion or evidence the agents have to go beyond the initial search and seize, examine and retain devices or data.

Americans already have no right to not have their devices subject to a cursory inspection. Are we to allow the devices to be copied and entered into a database for storage until later use? Because granting such power to violate privacy goes beyond security to encouraging and permitting repression of activists or those engaged in political activities that government officials or heads of corporations do not approve. It opens the door to violating people, especially those of color, who take an academic interest in issues or topics that may lead officials to conclude they are engaged in terrorism when their is no evidence of being involved in plotting such operations at all.

Update 

Brennan Center for Justice’s statement from counsel Michael Price:

We applaud the Ninth Circuit for recognizing the need to limit the government’s authority to search electronic devices at the border…Until now, the government had free reign to search travelers’ personal data at the border, to keep it, copy it, and browse through every line without any reason to suspect criminal activity. But in today’s watershed ruling, the Court drew a line in the sand and recognized that the vast amount of personal information and sensitive data on laptops, cell phones, and other electronic devices is worthy of Fourth Amendment protection.

Personally, I think the Center is being generous. This ruling does not appear to limit the government’s authority at all. One may even argue it further entrenches the power to engage in suspicionless searches of electronics at US borders.