Less than six week after the Department of Homeland Security (DHS) issued a civil rights impact assessment stating that the government needed no warrant or cause to search laptops and other electronic devices at U.S. borders, a federal appellate court has ruled otherwise.
In what is seen as a significant ruling, the U.S. Court of Appeals for the Ninth Circuit last week held that border agents do need to have reasonable suspicion in order to conduct forensic searches of electronic devices belonging to travelers at the border.
"The uniquely sensitive nature of data on electronic devices, which often retain information far beyond the perceived point of erasure, carries with it a significant expectation of privacy," the court noted.
The ruling fell somewhat short of the more stringent 'probable cause' standard that many rights groups have been advocating for border searches for some time. Even so, it marked the first time an appellate court has upheld the need for federal agents at the border to have at least some cause before they can search electronic devices.
The issue is an important one, not just for private individuals but also for business travelers who often carry laptops holding sensitive company data.
In recent years, DHS agents have searched thousands of electronic devices at the border, in most cases without warrants or reasonable cause. In some cases, the devices have been confiscated and the contents copied before being returned to the owner.
The searches have prompted considerable concern about sensitive corporate data and customer information becoming exposed or compromised.
Privacy groups and rights advocates have slammed the searches as being unconstitutional. They have argued that laptops, smartphones and other electronic devices contain highly personal and sensitive data and are therefore very different from other pieces of luggage a traveler might have. Such groups have maintained that border agents need to have specific cause before they search or confiscate an electronic device.
The DHS and several courts in the U.S. have held these searches to be valid, saying the Border Search Exception under U.S. criminal law allows the government to conduct border searches at any time and for any reason, without the need for probable cause or even a lower reasonable cause standard.
From that standpoint, last week's ruling is a major victory, said Hanni Fakhoury, staff attorney for the Electronic Frontier Foundation.
"I am very happy to see the court adopt some standard and some limitation on the government's ability to search at borders," Fakhoury said. "It says the Fourth Amendment isn't just dead at the border."
The Ninth Circuit ruling is also important because it notes that simply because a computer might contain encrypted or password-protected files is not enough reason to conduct a detailed forensic search of the device.
At the same time, it would have been better if the court had insisted on a probable cause standard for searches, rather than a reasonable-suspicion standard that can be interpreted in many ways, Fakhoury said. "Still, the way I see this is that it's a net gain," he said.
Though the ruling applies only to the Ninth Circuit jurisdiction, it is still significant, Fakhoury pointed out. The ruling affects a huge chunk of border territory in California, Arizona, Hawaii, and Washington.
The Ninth Circuit's ruling involves Howard Cotterman, who was charged with producing, shipping and transporting child pornography. Much of the evidence against Cotterman was gathered from his laptop computer via a warrantless search that began at a U.S. border in Arizona and was conducted later at a forensics facility about 170 miles away from the border.
Cotterman argued that the evidence be suppressed because it was gathered in violation of his Fourth Amendment protections against unreasonable search and seizure. He also maintained that the search of his computer amounted to an extended border search because it was conducted 170 miles away from the border.
A U.S. District Court that heard the case ordered the evidence suppressed. The government appealed the ruling, arguing they had conducted the search only because they already had information about Cotterman being convicted on a prior child molestation charge.
Federal prosecutors noted that Cotterman's frequent trips to Mexico, and the fact that several of the files on the computer were encrypted or password protected were reasons enough to conduct a more thorough search.
About two years ago, the Ninth Circuit rejected Cotterman's extended border search argument and held that the search of his computer was valid.
Last week, the Ninth Circuit again rejected his motion to suppress the evidence. Generally speaking, "legitimate concerns about child pornography do not justify unfettered crime-fighting searches or an unregulated assault on citizens' private," the court said.
But in Cotterman's case, the government did indeed have enough reasonable suspicion to conduct the search, the court said.
