Companies concerned about employees travelling abroad with sensitive business information stored on their electronic devices can take some comfort in the Ninth Circuit’s en banc ruling in U.S. v. Cotterman, No. 09-10139 (9th Cir. March 8, 2013). Inspections at border crossings have long been held to be an exception to the Fourth Amendment’s prohibition against warrantless searches without probable cause, allowing authorities broad latitude in searching travelers’ electronic devices. In Cotterman, the Ninth Circuit slightly narrowed that exception by requiring law enforcement to have reasonable suspicion of criminal activity prior to conducting a forensic examination of electronic devices.
The impact of the decision is not clear because the Ninth Circuit further held that authorities had the requisite reasonable suspicion based on the facts of the case sub judice, specifically, defendant’s prior child-related conviction, frequent travels, crossing from a country known for sex tourism, and variety of electronic equipment (two laptops, three digital cameras), plus the parameters of the Operation Angel Watch program aimed at combating child sex tourism. Thus, the child pornography found after a forensic examination of defendant’s laptops—conducted upon his return from Mexico—was admissible. The court rejected, however, the notion that password protection of computer files alone supports reasonable suspicion, requiring that other indicia of criminal activity also be present.