Featured Paper: “Let’s Have a Look, Shall We?” A Model for Evaluating Suspicionless Border Searches of Portable Electronic Devices

From the December 2013 issue of the UCLA Law Review: Sid Nadkarni, “Let’s Have a Look, Shall We?” A Model for Evaluating Suspicionless Border Searches of Portable Electronic Devices, 61 UCLA L. Rev. 148 (2013).

The article has an in-depth discussion of United States v. Cotterman, the border search case out of the 9th Circuit (en banc).

Abstract:

The Fourth Amendment’s border search doctrine has historically given the U.S.
government the right to search, without individualized suspicion, the belongings of
any individual crossing the U.S.border. Courts have traditionally justified this power
by citing the government’s paramount interest in preventing the smuggling of dutiable
goods and contraband such as illegal drugs. In the twenty-first century, the government
has controversially used this power to search and detain travelers’ portable electronic
devices, such as laptop computers, without suspicion to inspect for the transport of
prohibited materials like child pornography, terrorist communications, and pirated
software. 

In March 2013, the Ninth Circuit in United States v. Cotterman became the first federal
circuit court to rule that a particular border search of an electronic device had to be
preceded by a finding of reasonable suspicion that the individual had committed a crime.
Nonetheless, divergent rulings from the Fourth Circuit and a Massachusetts federal
district court leave the future of digital border searches shrouded in legal uncertainty.
Furthermore, the Department of Homeland Security’s recent reaffirmation of its view
that no suspicion at all is required for such searches puts the government on a legal
collision course with the Ninth Circuit and any other jurisdiction that adopts a similar
position. 

This Comment argues that digital border searches merit greater scrutiny than
conventional border searches because they are more likely to harm individuals’ Fourth
Amendment interests. The executive and legislative branches have been unwilling
and unable, respectively, to cabin the government’s power to search people’s electronic
devices without suspicion. Consequently, this Comment proposes that courts add
guidance, consistency, and greater Fourth Amendment protection to the laws governing
suspicionless digital searches at the border by adopting a special needs–style balancing
test that weighs the government’s interests against the individual’s and provides that the
most intrusive searches are impermissible without reasonable suspicion.

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Documents show U.S. government's use of border search exception to conduct domestic investigations

The ACLU recently released documents detailing how the United States targets citizens for domestic investigations by abusing the border search exception. The doctrine allows for searches and seizures to take place at international borders without probable cause.

David House had his computer, phone, and other devices seized as he returned to the United States from vacation. House was then working with the Bradley Manning Support Network.

Government documents demonstrate how House was placed in a database which notified Homeland Security Investigations (HSI), a department of ICE, of House's plans to travel internationally. "HSI was acting in cooperation with—and perhaps at the request of—the Department of Justice, the Department of State, and the Army’s Criminal Investigative Division."

Ultimately, House's devices were searched, and 26,000 files were evaluated. However, the government concluded that “no data was found that constituted evidence of a crime.”

The documents, released as part of House's settlement with the government, are available here.

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Breaking: 9th Circuit holds reasonable suspicion needed for forensic search of laptop at US border

The decision is United States v. Cotterman, __ F.3d __ (9th Cir. 2013), and the case summary is below:

The en banc court reversed the district court’s order suppressing evidence of child pornography obtained from a forensic examination of the defendant’s laptop, which was seized by agents at the U.S.-Mexico border in response to an alert based in part on a prior conviction for child molestation. 

The en banc court explained that a border search of a computer is not transformed into an “extended border search” requiring particularized suspicion simply because the device

is transported and examined beyond the border. The en banc court wrote that the fact that the forensic examination occurred 170 miles away from the border did not heighten the

interference with the defendant’s privacy, and the extended border search doctrine does not apply, in this case in which the defendant’s computer never cleared customs and the defendant never regained possession. 

The en banc court held that the forensic examination of the defendant’s computer required a showing of reasonable suspicion, a modest requirement in light of the Fourth Amendment. The en banc court wrote that it is the comprehensive and intrusive nature of forensic examination– not the location of the examination – that is the key factor triggering the requirement of reasonable suspicion here. The en banc court wrote that 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 and thus renders an exhaustive exploratory search more intrusive than with other forms of property.  

The en banc court held that the border agents had reasonable suspicion to conduct an initial search at the border (which turned up no incriminating material) and the forensic

examination. The en banc court wrote that the defendant’s Treasury Enforcement Communication System alert, prior child-related conviction, frequent travels, crossing from a country known for sex tourism, and collection of electronic equipment, plus the parameters of the Operation Angel Watch program aimed at combating child sex tourism, taken collectively, gave rise to reasonable suspicion of criminal activity.  

The en banc court wrote that password protection of files, which is ubiquitous among many law-abiding citizens, will not in isolation give rise to reasonable suspicion, but that

password protection may be considered in the totality of the circumstances where, as here, there are other indicia of criminal activity. The en banc court wrote that the existence

of password-protected files is also relevant to assessing the reasonableness of the scope and duration of the search of the defendant’s computer. The en banc court concluded that the examination of the defendant’s electronic devices was supported by reasonable suspicion and that the scope and manner of the search were reasonable under the Fourth Amendment.  

Concurring in part, dissenting in part, and concurring in the judgment, Judge Callahan (with whom Judge Clifton joined and with whom Judge M. Smith joined as to all but Part II.A) wrote that the majority’s new rule requiring reasonable suspicion for any thorough search of electronic devices entering the United States flouts more than a century

of Supreme Court precedent, isunworkable and unnecessary, and will severely hamstring the government’s ability to protect our borders. 

Judge M. Smith (with whom Judges Clifton and Callahan joined with respect to Part I) dissented. Judge Smith wrote that the majority’s decision to create a reasonable suspicion

requirement for some property searches at the border so muddies current border search doctrine that border agents will be left to divine on an ad hoc basis whether a property search is sufficiently “comprehensive and intrusive” to require suspicion, or sufficiently “unintrusive” to come within the traditional border search exception. Judge Smith also wrote that the majority’s determination that reasonable suspicion exists under the exceedingly weak facts of this case undermines the liberties of U.S. citizens generally – not just at the border, and not just with regard to our digital data – but on every street corner, in everyvehicle, and wherever else we rely on the doctrine of reasonable suspicion to safeguard our legitimate privacy interests.

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