Ninth Circuit Tightens Standards for Border Searches of Electronic Devices

On March 8, the U.S. Court of Appeals for the Ninth Circuit held in United States v. Cotterman that officials must have reasonable suspicion of criminal wrongdoing before conducting forensic searches of laptops at the border.  TCP, which participated in the case as a “friend of the court,” welcomed the ruling.

“In the digital age, we store so much detailed and highly personal information on our computers and smart phones,” said Sharon Bradford Franklin, senior counsel at TCP. “This decision recognizes the broad scope and extreme sensitivity of that information, and rejects the claim that border officials can conduct intrusive searches of mobile electronic devices without any basis for suspecting criminal wrongdoing.  The court refused to let border officials use the powers of modern technology to undermine our Fourth Amendment safeguards.”

The Cotterman case raised the question of whether the historical “border search” exception to the Fourth Amendment’s warrant requirement allows border officials to conduct suspicionless searches of travelers’ electronic devices. In a 9 to 2 decision, the en banc court recognized that “the uniquely sensitive nature of data on electronic devices carries with it a significant expectation of privacy,” and therefore held that in order to conduct a thorough “forensic search” of such devices, officials must be able to demonstrate “reasonable suspicion” of criminal activity. The court found that in this case, officials did in fact have reasonable suspicion to suspect Howard Cotterman of a crime, but it rejected the government’s claim that it was entitled to conduct such thorough searches without any such predicate.

TCP filed an amicus brief in Cotterman and participated in the oral argument in order to highlight the constitutional issues raised by the case.  Earlier, in May 2011, TCP’s Liberty and Security Committee issued a report concluding that suspicionless border searches raise constitutional concerns and urged the Department of Homeland Security to discontinue their use.

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