You may recall our recent post in which we referred to a “Constitution-Free Zone”, the 100-mile-deep boundary of the country, wherein the Department of Homeland Security reserved the right to search any electronic device, seemingly for any reason. Last Friday, in the decision U.S. v. Cotterman [PDF], the Ninth Circuit decided that, actually, the Fourth Amendment does indeed still apply even if you’re near the coast. Here’s what happened:
Agents seized [Defendant Howard] Cotterman’s laptop at the U.S.-Mexico border in response to an alert based in part on a fifteen-year old conviction for child molestation. The initial search at the border turned up no incriminating material. Only after Cotterman’s laptop was shipped almost 170 miles away and subjected to a comprehensive forensic examination were images of child pornography discovered.
The Court notes that while a warrant is not necessarily required for border searches, there has to be some “reasonable suspicion” leading up to a warrantless search. An “anything goes” approach is not appropriate, as the court’s 2008 Seljan established. Cotterman was flagged because of his previous conviction, and his laptop and digital cameras were looked at by an agent. Because some files were password-protected, though, the agents decided to send them to a forensics lab, 170 miles away. That secondary investigation found hundreds of images of child pornography in the laptop’s unallocated space.
The vast majority of the images were of the same girl, approximately 7–10 years of age, taken over a two to three-year period. In many of the images, Cotterman was sexually molesting the child. Over the next few months, [the forensic examiner] discovered hundreds more pornographic images, stories, and videos depicting children.
Cotterman was indicted by a grand jury, and tried to have the images suppressed on Fourth Amendment grounds. Lower courts went back and forth as to whether the decentralized search of the laptop was reasonable. On appeal, the Ninth Circuit framed the issue thus:
[W]e consider the reasonableness of a computer search that began as a cursory review at the border but transformed into a forensic examination of Cotterman’s hard drive.
So, the Court’s concern was more about this being a thorough, forensic examination of a hard drive, rather than it being a border patrol search removed a long distance away from the border. There follows an observation about the high capacity, and the high importance, of digital devices on our daily lives.
Electronic devices often retain sensitive and confidential information far beyond the perceived point of erasure, notably in the form of browsing histories and records of deleted files. This quality makes it impractical, if not impossible, for individuals to make meaningful decisions regarding what digital content to expose to the scrutiny that accompanies international travel. A person’s digital life ought not be hijacked simply by crossing a border… [T]he 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.
The Court ultimately held that reasonable suspicion IS still required at the border before carrying out any sort of search on electronics. This decision, coming so soon after the Homeland Security proclamation, was welcomed by tech bloggers. At least those of you that live in the Ninth Circuit, out west, can feel safe in the knowledge that your gadgets won’t be thumbed-through willy-nilly. While we’re on the topic of reasonable suspicion, though: the prosecution had tried to make the argument that, because certain files on Cotterman’s laptop were password-protected, that heightened the suspicion. No dice, said the court:
We are reluctant to place much weight on this factor because it is commonplace for business travelers, casual computer users, students and others to password protect their files. Law enforcement “cannot rely solely on factors that would apply to many law-abiding citizens,” … password protection is ubiquitous.
So what becomes of Cotterman? Even though the passwords weren’t enough – in and of themselves – to arouse suspicion, other factors were sufficient, specifically his child molestation conviction, and the fact that he and his wife were returning from Mexico, “a country associated with sex tourism.” So the evidence was allowed to remain.