Mar 082013
 March 8, 2013  Court, Featured News, Laws, Surveillance, U.S.

Orin Kerr on today’s Ninth Circuit en banc opinion in United States v. Cotterman, a case involving border searches of laptops.

Today the Ninth Circuit announced a special rule for computer searches: Although a “review of computer files” can occur without reasonable suspicion, the “forensic examination” of a computer at the border requires reasonable suspicion because it is “akin to reading a diary line by line looking for mention of criminal activity—plus looking at everything the writer may have erased.” Here’s the key part of the analysis:

The relevant inquiry, as always, is one of reasonableness. But that reasonableness determination must account for differences in property. Unlike searches involving a reassembled gas tank, or small hole in the bed of a pickup truck, which have minimal or no impact beyond the search itself—and little implication for an individual’s dignity and privacy interests—the exposure of confidential and personal information has permanence. It cannot be undone. Accordingly, the uniquely sensitive nature of data on electronic devices carries with it a significant expectation of privacy and thus renders an exhaustive exploratory search more intrusive than with other forms of property.

After their initial search at the border, customs agents made copies of the hard drives and performed forensic evaluations of the computers that took days to turn up contraband. It was essentially a computer strip search. An exhaustive forensic search of a copied laptop hard drive intrudes upon privacy and dignity interests to a far greater degree than a cursory search at the border. It is little comfort to assume that the government—for now—does not have the time or resources to seize and search the millions of devices that accompany the millions of travelers who cross our borders. It is the potential unfettered dragnet effect that is troublesome.

We have confidence in the ability of law enforcement to distinguish a review of computer files from a forensic examination. We do not share the alarm expressed by the concurrence and the dissent that the standard we announce will prove unmanageable or give border agents a “Sophie’s choice” between thorough searches and Bivens actions.

In dissent, Judge M. Smith responds:

While I share some of the majority’s concerns about the steady erosion of our personal privacy in this digital age, the majority’s decision to create a reasonable suspicion requirement for some property searches at the border so muddies current border search doctrine that border agents will be left to divine on an ad hoc basis whether a property search is sufficiently “comprehensive and intrusive” to require reasonable suspicion, or sufficiently “unintrusive” to come within the traditional border search exception. Requiring border patrol agents to determine that reasonable suspicion exists prior to performing a basic forensic examination of a laptop or other electronic devices discourages such searches, leaving our borders open to electronicallysavvyterrorists and criminals who may hereafter carry their equipment and data across our borders with little fear of detection. In fact, the majority opinion makes such a legal bouillabaisse out of the previously unambiguous border search doctrine, that I sincerely hope the Supreme Court will grant certiorari, and reverse the holding in this case regarding the level of suspicion necessary to search electronic devices at the border, for the sake of our national security, and the consistency of
our national border search law.

And Judge Callahan adds:

Regrettably the majority, dispensing with these wellsettled, sensible, and binding principles [from Supreme Court caselaw], lifts our anchor and charts a course for muddy waters. Now border agents, instead of knowing that they may search anyand all property that crosses the border for illegal articles, must ponder whether their searches are sufficiently “comprehensive and intrusive,” to require reasonable suspicion, and whether they have such suspicion. In most cases the answer is going to be as clear as, well, mud. We’re due for another course correction.

Read Orin’s commentary on The Volokh Conspiracy.

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