Ninth Circuit Limits Federal Search and Sezuire of Electronics at the Border

Court curbs laptop searches at U.S. border

A federal appeals court on Friday said Customs and Border Protection officers cannot confiscate or download every laptop or electronic device brought into the U.S., ruling that people have an expectation their data are private and that the government must have “reasonable suspicion” before it starts to do any intensive snooping. In a broad ruling, the court also said merely putting password protection on information is not enough to trigger the government’s “reasonable suspicion” to conduct a more intrusive search — but can be taken into account along with other factors.

Sources: Court curbs laptop searches at U.S. border

Background
It is important to understand this story fully, what connects the dots and where it leads us. This case and opinion all started with United States v. Cotterman (PDF Link). In that case, border patrol agents confiscated laptops from Cotterman and his traveling mate as they crossed from Mexico into Arizona. The basis of confiscation was the previous record of Cotterman.

This case is very important as it asks the following: While the Supreme Court allows such searches to occur upon the border, this involved confiscation and removal of those items to be examined hundreds of miles from it. Cotterman made no contention to the agents keeping the laptop, but took exception to the fact they examined it so far from the border, as no one at that point-of-entry was capable of doing so.

In the 9th's original case in this regard, they found the following:

We find no basis under the law to distinguish the border search power merely because logic and practicality may require some property presented for entry—and not yet admitted or released from the sovereign’s control to be transported to a secondary site for adequate inspection.

The further narrowed this opinion by expressing the following:

Still, the line we draw stops far short of “anything goes” at the border. The Government cannot simply seize property under its border search power and hold it for weeks, months, or years on a whim.

Simply put, sending a laptop off to be analyzed does not violate the long-standing border-search doctrine, but it doesn't give a free pass and scrutiny should always be held when they occur. It should be noted though, this decision came from the typical "three-judge panel" that is most often used.

Move forward to today and this ruling. In this reevaluation of the Cotterman case, the 9th Circuit and the parties involved sought "en banc" or, all the judges and not just the panel to review the case. Here is the PDF of this most recent ruling, which is what the news article/link above is based on: United States v. Cotterman (2013)

It is here we see the court, en banc, has recognized that electronic devices, passwords, etc, are ubiquitis and needs to be addressed and cannot solely fall back on traditional practices at the border in regards to the "border search doctrine".

Some of the notables from this most recent review of the Cotterman case is as follows:

...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.

While the border doctrine allows search of items held at the border, the seizure and examination must follow 4th Amendment procedures and further examination of the searched items, requires the move from "reasonable suspicion" (which the border doctrine is built upon) to the more stringent "probable cause". In this case, such wasn't met and the en banc court recognized that.

Because of Cotterman's past, the warnings that the border agents had (his name was on a list of known people for sex-offenses), the frequent travel to a country known for sex-trafficking and under-aged sex, and other matters, left the court to see the search as reasonable. They however, recognize that password-protection alone does not raise suspicion nor is it enough to break the threshold beyond the established border protection doctrine.

Importance
The importance of this case is because the Secretary Napalitano asked for deference in a current case, until this outcome was settled. That case relates to the re-affirmation of the DHS to continue its crate-blanche search and seizure. This will surely dent those prospects of that.

Here is the letter from the DHS: PDF

This will all fall into place with the more recent District Court of Appeals case of Pascal Abidor et al. v. Janet Napolitano. It should be a fun ride but with the Ninth Circuit Court of Appeals (the most overturn court in United States' history) giving en blan opinion that supports the citizens' rights to the 4th Amendment at the border, it will be bumpy.

Are there any stated parameters which define "reasonable suspicion” or probable cause other than the sole discretion of the officer at the time?

reply to post by BlindBastards


In this case, we have to remain focused that these cases deal with the "Border-Search" doctrine. Firstly, the Court has consistently upheld searches of routine nature, at the border as necessary to the sovereignty of our Nation.

It is well-established that the sovereign need not make any special showing to justify its search of persons and property at the international border.

and

Time and again, [the Supreme Court] ha[s] stated that searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border.

The "reasonable" threshold is held apparent at border-searches of persons seeking entrant into the country. However, the Courts recognize that there are limits in place and the above does not give the authority to the Government to engage in "extra-border searches" because they can supposedly justify it. For instance, in Villasenor, the search occurred long after they entered the country and had no reasonable suspicion other than the border agents thought they could do it.

The touchstone for particularized suspicion is therefore not simply the occurrence of a search or seizure at a location other than at the border; rather, it is the greater Fourth Amendment intrusion that occurs when an individual is detained and searched at a location beyond the border where he had a normal expectation of privacy in the object searched.

The recent en banc court, in which this thread is about, further strengthens the "reasonable suspicion" threshold by explicitly pointing out a newer item:

Password-protected electronics and files are not, alone, enough to cross that threshold as they have become ubiquitous in our lives.

I find it interesting, since this case deals with a very real threat, that it didn't get much play as far as discussion. Since many are up in arms about the "100 mile 'Constitution Free Zone'" has been pushing for a number of years now.