Mar 112013
 
 March 11, 2013  Court, Laws, Surveillance, U.S.

Orin Kerr writes:

Last Friday the Ninth Circuit decided United States v. Cotterman, a case on the border search exception to the Fourth Amendment. The en banc court held that manually searching for files through a computer is allowed at the border, but that “forensic examination” at the border requires reasonable suspicion.

 

[…] the Cotterman opinion raises some interesting questions about where the lines are here. In particular, here are three questions I have:

1) Are there any limits on how much manual searching agents can conduct without reasonable suspicion? Can the agents do anything as long as they do it manually? Or are they limited to only “reasonable” manual searches? And if the latter, what is the line between a “reasonable” manual search and an “unreasonable” manual search? Does the amount of time taken matter? The type of files viewed using the manual search?

2) Imagine the agents are conducting a manual search at the border and they come across password-protected files. They lack reasonable suspicion, and as a result they are not allowed to use forensic software to gain access to those password-protected files. But are they allowed to guess passwords to try to view the files? Imagine the electronic device is an iPhone that has a passcode lock on it. The agents guess the 4-digit code correctly — say, 1-2-3-4 — and they then view the information on the phone. Is that permitted without reasonable suspicion because it is still only a manual search? Or is that not permitted because password-protection usually blocks manual access?

3) Can law enforcement make an image of the hard drive and then mount the hard drive on a separate machine and then search it manually? The major reason investigators make images and search only the images is to maintain evidentiary integrity: Searching a computer can alter the evidence on it, so agents work off an image in order to retain the original as original. Are they still allowed to do that without reasonable suspicion? Or is making an image part of the “computer forensic examination” for purposes of the Fourth Amendment?

Read more on The Volokh Conspiracy.

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