As an experienced criminal defense attorney, I am gratified
that the 9th Circuit Court of Appeal’s en banc decision on United States v. Cotterman, 2013
DJDAR 3018, requires a reasonable suspicion to search a person’s laptop, tablet, or even
iPhone, when entering the country.
However, it seems to be a rather jarring conclusion
that one of the reasonable suspicious circumstances relied on was that Cotterman was returning to
the United States from Mexico, a country “known for its sex tourism” according to the
What does that mean - no search if you’re returning from
Canada? As reported by the Associated Press, PHOENIX (AP) — A federal appeals court
ruled Friday that Border Patrol agents must have reasonable suspicion of criminal activity before
conducting comprehensive searches of laptops or other digital devices in what civil liberties
activists are calling a significant victory for privacy rights.
The decision by the 9th
U.S. Circuit Court of Appeals creates for the first time a broad standard aimed at protecting
travelers' most private information from arbitrary searches.
"A person's digital
life ought not be hijacked simply by crossing a border," Judge M. Margaret McKeown wrote for
the appeals court majority.
The ruling only applies to Border Patrol agents operating
within the 9th Circuit, which includes the U.S.-Mexico border along Arizona and California.
The court did not define what constitutes a comprehensive search, and it's likely Border Patrol
agents will still conduct superficial reviews of computers, thumb drives, compact disks, cellphones,
cameras and other electronic devices during border stops.
Legal observers expect both
sides will appeal the decision to the U.S. Supreme Court. The federal government insists border
agents don't need reasonable suspicion to search electronic devices for hidden and deleted files.
The case centered on Howard Cotterman, a U.S. citizen whose laptop was seized at the
Arizona-Mexico border in 2007. After a months-long review, federal investigators found hundreds of
hidden child pornography files on Cotterman's computer, including images of him molesting a young
girl, the court decision states.
A grand jury had indicted Cotterman for offenses related
to child pornography, but a district court deemed the search illegal and suppressed evidence. The
Fourth Amendment prohibits "unreasonable searches and seizures."
court ruled that federal agents had reasonable suspicion based on a 15-year-old child molestation
conviction against Cotterman and because Mexico is known as a sex tourism destination.
Bill Kirchner, a Tucson lawyer representing Cotterman, declined to discuss the specifics of his
client's case other than saying his criminal history was not sufficient grounds for reasonable
In its ruling, the appeals court noted that the intrusive nature of forensic
searches of electronic devices triggers the reasonable suspicion requirement.
federal policy, investigators can detain electronic devices for months without cause. The forensic
reviews often uncover password-protected and deleted files.
"It's definitely a move
in the right direction in terms of recognizing privacy rights in the digital age," said Sharon
Bradford Franklin, a lawyer with the Constitution Project, which had filed an amicus brief in the
case supporting new privacy standards.
Nearly 7,000 people had their electronic devices
searched by border agents from 2008 to 2010, according to the Constitution Project.
U.S. Attorney's Office in Arizona declined to comment on the case.
In a dissenting
opinion, Judge Consuelo Callahan said the court's decision flouted "more than a century of
Supreme Court precedent, is unworkable and unnecessary and will severely hamstring the government's
ability to protect our borders."
But Hanni Fakhoury, a staff attorney with the
Electronic Frontier Foundation, said reasonable suspicion is a far cry from probable cause, which
would require Border Patrol agents to obtain a warrant before fishing for hidden digital files.
The foundation had filed an amicus brief urging the court to rule that forensic searches of
electronic devices at the border should never be performed without reasonable suspicion.
"It's still a very lax standard," Fakhoury said. "It still allows law enforcement
to do their job and keep us safe."
Kirchner said it was likely he would appeal the
decision. He said privacy advocates should be alarmed that the ruling only applies to exhaustive
searches, not superficial content reviews.
"They can take your iPhone, they can take
your Kindle, they can take anything they want and keep it and search it for a non-forensic
search," Kirchner said.
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