Ninth Circuit Rules Government Agents Need Reasonable Suspicion to Search Laptops, Other Property at Border Checkpoints

No reasonable suspicion previously needed at border


no checkpoint charlie
jim.greenhill /

The Ninth Circuit Court's handed down a ruling limiting the power of government agents to search your property at border checkpoints. Lawfare explains:

The Ninth Circuit sitting en banc has decided US v. Cotterman, a case involving the search of a computer laptop by DHS agents at the border.  Traditionally, the law has been that searches at the border are plenary and require no suspicion at all — they are reasonable because they occur at the  border and because a sovereign has control over goods and people who enter or exit its territory.

Cotterman rejects that general rule.  It concludes that given the comprehensive and intrusive nature of searches into the contents of laptops the government must articulate a "reasonable suspicion" before it may search the contents of a computer system.

Michael Price, counsel for the Brennan Center for Justice, which filed an amicus brief in the case, made the following statement:

"We applaud the Ninth Circuit for recognizing the need to limit the government's authority to search electronic devices at the border. Until now, the government had free reign to search travelers' personal data at the border, to keep it, copy it, and browse through every line without any reason to suspect criminal activity. But in today's watershed ruling, the Court drew a line in the sand and recognized that the vast amount of personal information and sensitive data on laptops, cell phones, and other electronic devices is worthy of Fourth Amendment protection."

One of the judges on the Ninth Circuit Court, Alex Kozinski, a self-described libertarian, recently sat down to talk to Matt Welch for Reason TV. Watch here:


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  1. It’s the 9th; may well get o-t’d.

    1. Given the recent decision on dog authorized searches, I am sure the SCOTUS Nazgul will have no difficulty in overturning.

      1. See my post below. I can see a thousand reasons why this is going to get overturned.

        1. You’re wrong. See my post below.

          1. You’re both wrong. See my post below.

            1. You’re all fucking wrong, fools, see my post above.

              1. I got post right here for ya, baby.

                1. I’m posting you mofoes in. Look up, look down. No escape.

        2. Read this post.

          Then, Go to first Post and commence reading.

          Infinite loop mutherfuker!!

          1. 10 Let X = X + 1

            20 Print X;

            30 Goto 10

            1. Old school.

              That’s OK, so am I.

            2. while(1)

      2. Well duh. If a dog barks at your comouter of course the government can steal it. What are you? some kind of terrist?

    2. just as Roy answered I didnt even know that some one can make $6900 in one month on the computer. did you read this web page…

  2. I think that these foreigners are trying to sneak into the country through a checkpoint should be suspicion enough. And isn’t it free rein?

    1. No I think it’s reign since it’s power related

      1. Yeah, lions on reins being towed. You get the idea.

  3. Anyone watch last night’s episode of Archer that had a surprisingly sharp discussion about immigration?

    1. Yup. Quite good.

      1. Woah there guys. It wasn’t really sharp at all, any more then the lines during the train episode were sharp gun control discussions.

        It’s freaking Archer. The funny thing was Lana being an immigration hawk after the pipeline nonsense.

        Although the funniest part of the episode to me was Archer’s riffing on Lana’s autism crack. I was cackling like the hosts of the View.

        1. “I counted the bullets! …Wait, maybe I do have autism?”

  4. Well fortunately the finely-tuned senses and highly-trained skills of law enforcement dogs can sniff out criminal data with at least 110% accuracy. So border patrol has not only reasonable suspicion, but probable cause. And if the mark civilian gets uppity, they have clear and present danger.

  5. But John told me there IS no 4th Amendment at the border and thus no question of reasonableness needs to be considered at all.

  6. “Reasonable suspicion” = “Cuz I FEEL LIKE IT”

    Fuck the Supreme Court.

    1. at least it makes liars out of cops

  7. It concludes that given the comprehensive and intrusive nature of searches into the contents of laptops the government must articulate a “reasonable suspicion” before it may search the contents of a computer system.

    Okaaaaaay. If not laptops, then why not my pockets or the trunk of my car?

    1. Why not your three year old’s anal cavity?

      1. Although courts have long recognized that border
        searches constitute a “historically recognized exception to the
        Fourth Amendment’s general principle that a warrant be
        obtained,” United States v. Ramsey, 431 U.S. 606, 621
        (1977), reasonableness remains the touchstone for a
        warrantless search. Even at the border, we have rejected an
        “anything goes” approach.

        1. You’ve failed to answer my question. If not my laptop, why not my pockets?

          I can see the SCOTUS looking at this as an odd exception to ‘personal property’. Define, in legal exactitude, how searching my laptop is entirely different than searching my trunk?

          1. Mindful of the heavy burden on law enforcement to
            protect our borders juxtaposed with individual privacy
            interests in data on portable digital devices, we conclude that,
            under the circumstances here, reasonable suspicion was
            required for the forensic examination of Cotterman’s laptop

            1. People smuggle drugs into this country in pockets and trunks. Drugs are bad, mkay. Data on laptops isn’t bad, mkay.

              1. Ok, so the exception then relies entirely on what can be smuggled. If drugs can be smuggled in a trunk and drugs are bad, mmkay, my trunk falls within the exception to the fourth amendment. But because data isn’t drugs, and data isn’t bad mmkay (except when it is) a laptop can’t be searched.

                So your entirel legal distinction is ‘drugs’. So my trunk is back on the block for searching.

                1. It’s not my legal distinction. I’m just parroting the case law. All the courts are doing is weighing public safety v. your privacy interests. Drugs are really bad, mkay whereas data on computers is just bad, mkay.

                  1. I know it’s not your legal distinction. I’m merely trying to see this through SCOTUS eyes when (and if) they get the case.

                    Without a warrant, we can search your person, we can rifle your trunk, we can go through your pockets, we can rifle every suitcase you have, we can feel your wife’s underwear for small bags of heroin that might be sewn in, but we can’t touch the laptop, because we can’t touch the laptop.

                    1. We can’t touch your laptop because it contains a massive amount of intimate information and the state hasn’t put forth a strong enough argument why public safety demands this degree of intrusion.

                      Drugs are really, really, really bad and pervasive at the border, m-kay.

                      Child porn on lab tops is really, really, really bad but not pervasive.

                      19 USC ? 1305 violations aren’t threatening and pervasive enough to scare judges into discarding our privacy interests.

                    2. Border control isn’t limited to public safety purposes. There’s also customs enforcement and the detection of contraband.

                    3. Okay, I give up. I’m bending over now. Please be gentle.

                    4. 19 USC ? 1305 violations aren’t threatening and pervasive enough to scare judges into discarding our privacy interests.

                      It was in United States v. Thirty-seven Photographs and United States v. 12 200-ft. Reels of Film, among others.

              2. 19 USC ? 1305 – Immoral articles; importation prohibited

                All persons are prohibited from importing into the United States from any foreign country any book, pamphlet, paper, writing, advertisement, circular, print, picture, or drawing containing any matter advocating or urging treason or insurrection against the United States, or forcible resistance to any law of the United States, or containing any threat to take the life of or inflict bodily harm upon any person in the United States, or any obscene book, pamphlet, paper, writing, advertisement, circular, print, picture, drawing, or other representation, figure, or image on or of paper or other material, or any cast, instrument, or other article which is obscene or immoral


                1. Congress and the applicable postal regulations authorized the actions undertaken in this case. Title 19 U.S.C. ? 482, a recodification of Rev.Stat. ? 3061, and derived from ? 3 of the Act of July 18, 1866, 14 Stat. 178, explicitly deals with the search of an “envelope”:

                  “Any of the officers or persons authorized to board or search vessels may . . . search any trunk or envelope, wherever found, in which he may have a reasonable cause to suspect there is merchandise which was imported contrary to law. . . .”

                  1. “Reasonable cause to suspect” is the key in that statute. Drag net searches of an envelope aren’t authorized.

                2. @Cdr Lytton…..nt_3598425

                  A reminder of where one of your 3 felonies a day can come from. It’s ironic because the thousands of pages of USC is itself immoral

  8. So in practical terms, what does this mean for somebody who’ll be crossing the border next week? Does this ruling forbid such a search or does there need to be some kind of official announcement?

    1. The publication of the ruling *was* the official announcement – now you just have to deal with DHS agents who don’t know the law.

      1. in theory courts in that circuit will start suppressing evidence obtained in violation of this ruling

  9. “. . .they are reasonable because they occur at the border and because a sovereign has control over goods and people who enter or exit its territory.”

    I would say that that arguement fails right there – the US has no sovereign.

    1. And its an incredibly important ruling since the courts have held that “border” searches can be conducted within 100 miles of the actual border.

      1. I’m waiting for the day when some bright child realizes that the U.S. claims less than 100 vertical miles of air sovereignty, thus placing the entire country within 100 miles of “the border”.

  10. Data on laptops isn’t bad, mkay.

  11. Strike one.

    Data on laptops isn’t bad, mkay.

    Kiddie porn.

    Let the freakout commence.

  12. at least it makes liars out of cops

    Like anybody in the government gives a shit.

    1. every now and then one of them commits suicide

  13. OT: Remember that Reason video that talked about the Surgery Center of Oklahoma, the hospital actually uses transparent pricing for all it’s procedures? Well a (which calls itself “Social media’s leading physician voice”) writer has apparently taken notice of them, and has an article about it, called Can you really choose a hospital based on the best price?:

    If people who shop for health coverage in the new state insurance exchanges beginning this fall choose policies with high deductibles to keep their premiums affordable ? and I believe many will ? the idea of a low-cost hernia operation could be appealing. But while we might have a hankering for the latest flat screen HDTV, do we decide on our own that we want a hernia? What about your primary care doctor or the specialist to whom he or she sent you who may have recommended the surgery in the first place?

    Are you going to say, “Hey, doc, I can’t afford the hospital you use, I’m going somewhere else?” What does that do for trust?that intangible thing that’s so important for healing? To me, the health care marketplace advocates have hardly considered that relationships and confidence might be as important as price.

    It goes downhill from there.

    1. P.s.

      Dr. Smith of the Center also took note, and gave areply on the Center’s blog.

      1. Ever notice that when a progressive wants to explain why the price system is bad, they never come up with anything quantifiable? It’s always like “There will be a CRISIS OF CONFIDENCE!”

    2. This might come as a shock to this moron, but people consider all kinds of factors other than price when purchasing other commodities. Somehow they manage to balance them.

    3. What about your primary care doctor or the specialist to whom he or she sent you who may have recommended the surgery in the first place?

      How is that even a serious argument. We refer people to specialists all the time. If they have a preference for a different specialist it’s inconvenient (we handle affiliated specialist reports in house), but it’s not a trust issue. No part of your medical care should be decided because your primary care physician might be butthurt that you didn’t stay in his referral network.

    4. My wife and I know a couple who decided that they wanted more babies and they should get their vasectomy reversed.

      Turns out there was a clinic in Arkansas that did the procedure for like a third of what it would be here in Sunny Minnesota. So off they went and had the operation. (after 3 years he did finally manage to knock her up again, so I guess it paid off).

      My wife still gets mad at me because I giggle and snort every time I think of this story. I think it is because I use air quotes instead of italics when I tell the story in real life.

  14. every now and then one of them commits suicide

    “Suicide by Citizen” has a nice ring to it.

  15. Well there goes my plan to pick up a hot Border Patrol agent by impressing her with my friskability.

  16. After their initial search at the border, customs agents made copies of the hard drives and performed forensic evaluations of the computers that took days to turn up contraband. It was essentially a computer strip search. An exhaustive forensic search of a copied laptop hard drive intrudes upon privacy and dignity interests to a far greater degree than a cursory search at the border.

    So they can still search, it’s the copying of personal data that is unreasonable.

  17. I’d rate it about a 90% probability this is overturned by Scotus. That’s based on the types of cases that the SCOTUS overturns from the 9th.

  18. Hand over that laptop, because fuck you, that’s why. Me and my Neanderthal friends here need to see if there’s any home porn on there, cause we’ve never seen a real life woman nekked before. You know, cause we’re worthless brown shirt losers and useful idiots, that work for the gubmint.

    1. Fwiw, it is a hard and fast rule of Meth Labs that you will find homemade porn in them when you raid them. Almost every time.

      1. So you are saying that Meth manufacturers are some horny dudes?

        So, why exactly are you discovering this?

        1. Actually, it’s well established that meth (and stimulants in general) increase libido. Depressants tend to suppress libido (again, tend to – there are always exceptions) and stimulants tend to increase libido.

          Meth-heads love gadgets and video cameras especially. I’ve had several cases in meth labs where they have videotaped themselves making meth, which is why we are looking through the videotapes. On other tapes, I have seen them brag about various crimes they committed and even hold the swag up to the camera. It’s pretty amazing.

          Meth home made porn is distinguished by the lovely abscesses, bruises, and AWFUL physiques.

          1. Depressants tend to suppress libido

            Alcohol is well known to cause temporary increases in testosterone, especially in women. That’s why us guys love to get the wimin folks, drunk. It kills off their ‘I need to feel like special snowflake’ mode, and brings out reptilian primitive urges brain.

            But I would agree, that stimulants work, ephedrine is a strong aphrodisiac IMO.

            1. That’s why i said “tends to” and stuff like in general. There is always an exception. I used to take ephedrine quite frequently as part of the Ephedrine/Caffeine workout stack.

              Kind of hard to do clean and jerks when your John Thomas gets in the way, if you know what I mean :l

          2. A cop once told me that you can find three things at any meth bust: drug paraphernalia, porn, and more porn.

  19. I use full disc encryption anywas so they couldnt look if they wanted to lol.

    1. they’d make you anonobot, they’d make you

  20. Even if this wasn’t overturned, it doesn’t seem to provide any security for individuals as the same people who are conducting the searches are the ones who will be determining if there is “reasonable suspicion”.

    What if you refuse to answer a question–one that you might even make a legal argument for not answering? That itself would be a sign of “reasonable suspicion” and thus provide a rationale for searching.

    1. No. Ultimately, it’s the courts that will determine if there was reasonable suspicion. You are correct that IN THE FIELD, the agent could make that determination, but later it will be the court that will or won’t uphold it based on RS.

      In patrol, we live, sleep, eat and breathe RS. I think we (and I) do a pretty good job, but just like PC it’s based on a totality of the circs.

      RS certainly provides a level of security in the “real world” and numerous cases get thrown out because a cop thinks they had RS and the judge(s) say they didn’t. To cops credit, they could lie and pump up the RS factors, but contrary to reasonoid belief, most cops are honest and won’t do that. I’ve had suppression hearing upheld before when a judge ruled I didn’t have RS. Another judge might have ruled for it. These are close calls a lot of the time.

      But again, ultimately, it will be a judge not the agent, that will determine if there was RS.

      1. I understand, but the problem is first a person has to undergo search in the first then must decide to fight the system; and a victory does not bring any real penalty for agents or agency that judges rule against, and it means absolutely nothing to the system that allows it to occur in the first place

        Second, that doesn’t at all prevent any attempts to continue searching, nor does it prevent attempts to gain implicit consent to searches i.e. casual questions

        Another judge might have ruled for it. These are close calls a lot of the time.
        An indicator of a bad system BTW. A system of real (non-positive) law would be based on subjective interpretation of weasel words

        1. – “.. would not be based on ..”

          1. In regards to your last point… You can’t write a constitution that does not require interpretation. Granted, the founders COULD have written one that recognizes a right to privacy. They didn’t. They merely require “reasonableness” on the part of the LEO’s which naturally needs interpretation. Although I wouldn’t characterize it as a “weasel word”, I certainly get your point. It’s open to a rather broad swath of intepretive “room”.

            1. You can’t write a constitution that does not require interpretation.

              Yes you can, write the thing in lojban.

                1. There’s an xkcd for everything.

                  1. not quite, but he is getting there.

                  2. Had to do a quick google search, and yup, it exists.


                    1. The best part is that it spawned this:

                    2. interesting.

              1. Yes you can, write the thing in lojban.

                Lojban is such a carefully-designed, logical, yet utterly stupid language that it serves as an excellent illustration of the value of semantic ambiguity in real human language.

  21. but contrary to reasonoid belief, most cops are honest and won’t do that.

    Well, I think you have a lot of convincing to do. What are we supposed to think? If cops want to be seen as legitimate again, instead of mindless jackboot tools of the state, then I think those of you who are honest need to have a no bullshit tolerance for those who are abusing their authority. And I don’t have to prove that point, it’s in the news every day now.

    You can’t just expect people to trust you, you have to prove it.

    I appreciate you coming here and putting up with all of the shit that you take, if you are indeed being honest with us, but you can’t just expect people to trust you.

    But, in the current environment of the USA, I am a LOT more afraid of cops than I am of criminals. And I’m not doing anything illegal. What if some swat raid gets my address by mistake? What if I get pulled over for a signal light out and my dog bolts out the window? I bet that a lot of people feel the same as I do. What the hell kind of society have we become?

    1. If I relied solely on reason for my source of information, I would be similarly misinformed. The reality is in the stats. I’ve posted them many times. Police very rarely use force, and exceptionally rarely use lethal force. The vast majority of lethal force incidents involve multiple convicted felons, etc.

      Your fears are baseless. I suggest you do a couple of ride-alongs with the PD and get an idea of what actually happens in the real world.

      I know that most people (outside the rarefied Reason climate) *do* trust me, because I am a cop. The polling data is clear on that. Most people respect and trust cops. I don’t expect reasonoids to.

      1. We are a special lot, meu amigo. You are here for a reason, so maybe you already understand what I am saying.

        I’m not trying to give you shit, I’m just trying to give you some perspective.

        1. I understand the perspective. I , without good cause, believed many of the same things that reasonoids believe until my personal experience showed me reality is not what I thought it was. I saw it as a lifeguard (we had to call the police a fair # of times), and then as a firefighter and finally as a cop myself. I saw a lot of compassion, fairness, common sense, and guys jus trying to do the right thing, and usually doing it.

          When I was in college I played in a band, and the cops were always cool with us. The one time I was a dick to them, I got treated like a dick. Lesson learned.

          Regardless, I do suggest ride-alongs, or even a citizen’s academy if your city offers one. At least where I work, we have a good working relationship with the community.

          Twice in the last two months I have also had people buy my dinner anonymously at a restaurant. Iow, they anonymously paid for it to thank me for what I do.

          It’s very rewarding. That’s why it doesn’t bother me in the slightest – all the reasonoid hatred, and the die in a fire shit, etc. I realize it’s just mostly ivory tower ninnies who have no life, and who have to live it vicariously through television and movies and who think they know everything when in fact they know very little about PEOPLE. This is a people job and I love people. People are on the whole to be respected and admired, even those that hate cops.

            1. Dunphy is one of the best posters here and I appreciate his input. I have friends and relatives that are cops and believe me, they let a lot of shit slide. There are some that are assholes, just like any other occupation.

              1. Yeah. But an asshole shoe salesman can’t arrest you. An asshole janitor can’t accidentally unload his magazine into you. Even an asshole veterinarian wont generally murder your dog.

  22. Justin Bieber to paparazzo: ‘I’ll beat the f? out of you’

    1. Were they scared?

      1. without a doubt

        1. So what could you do? I mean you can’t just punch out an effeminate teen, can you?

          1. well he is an adult now

            1. So, then can he vote for Obama in the next election?

              1. next Election, Obama will have 98% of the global vote.
                You think the rest of the world would chance a Rethuglican in the white house?

                1. Well, I sure hope not. Rethuglicans, all they want to do is put colored folks and vaginas back in chains.

                  And that Rand Paul wingnut, he’s one of the TeaPublican baggers.

                  1. What’s wrong with putting vaginas in chains?

                    1. I dunno. Some wiminz folk are seeing themselves oppressed by it?

                      My wife is always telling my mom that she’s a white slave, even though she doesn’t have a job, and her husband works all the fucking time.

                      I’m doing an equal amount of house work when my wifey works the same hours as I do. Yeah, I’m a sexist bastard, and I am ok with that.

                    2. Don’t you know doing a small amount of housework, running two errands, and cooking one meal a day is THE HARDEST JOB IN THE WORLD??!?!?!?!

    1. Wow, the little toy would have been tazed and had like 50 bullet holes in it, here in Murika.

  23. This is the worst chat room ever!

    1. PM links sucked ballz, dude. I have been waiting for like, 2 weeks, to make some AM or PM links. And then??? Ball sucking noises.

      1. Yeah, today’s PM links were weak. But H&R will have its off days.

        1. all the more reason for an evening links

          1. I think I must be mostly talking to left coasters, because I can typically only get on here late at night, EST.

            1. It’s 7:22 in California. I just like to lurk around here before going out later.

              1. 10:28 here in Balmer… well, Mount Washington, AKA White Balmer. Did that sound racist?

                1. As in Baltimore, Maryland?

                  1. Yep, the one and only

                    1. Hmm, Googleing Mount Washington gets me the actual mountain in New Hampshire and a neighborhood in LA.

                2. If you had any ambition, you’d live in Roland Park.

                  (former denizen of Park Circle area)

    2. hah that phrase is in the reasonable filter

      1. Yeah, it came up hidden.

  24. From the swimming pool to the catwalk, former Olympic swimmer-turned New York model Casey Legler has found her calling as a male model.

    1. Ugh. Now I’ve got to wash my eyes out with Rosie Jones.

        1. Wasn’t there a guy about a year or so ago that used to spam us with links to that site?

          1. I somehow accidentally clicked on a thread from last year and found that link. Did I just release some kind dormant spam virus??!!

  25. Neutering dogs can double or triple their risk of cancer

    1. Well, fuck, dude. What the fuck if someone whacks you pee-pee? You’re going to get depressed, therefore, Increased risk of cancer.

  26. White House to suspend tours because of sequester, WaPo laments tragic failure of democracy.

  27. Looks as if the Blackhawk streak will end tonight.

    1. Noooo!

      I was actually pulling for them. They’re not in our conference so who cares if they win a zillion in a row?

      1. They’ll be in the Jets “division” next season.
        The Jets sure managed to play down to the Panthers level tonight.

        1. I heard that the new schedule and divisions will cause a paradox that rips a hole in the space-time continuum.

          1. Western teams will have a 7% greater chance at making the playoffs.

            1. Don’t know if you saw this last night.

              Fuck, that’s some shit, ain’t it?

              1. a go getter

    2. As far as I’m concerned it ended when they lost that shootout.

      1. They still got a point, and would have if it had ended as a tie in the “old rules”

        1. I guess I’m just not impressed with streaks in sports that allow for ties.

          The Miami heat winning 17 straight is far more impressive IMO.

          1. It was a big deal ten years or so ago when Arsenal won the EPL without losing a single game.

      2. Oh, be quiet.

        Jesus, go watch some football commercials.

        1. I’m just waiting for baseball season to start.

          1. I love it when people that watch football talk shit on baseball.

            “Baseball?! That shit is so boring!”

            *watches 4 hours of doritos/ford truck commercials*

            1. Like Nascar fans who find 4 hours of left turns more exciting than a 90 minute F1 race.

            2. What I love about baseball is that you have to get all 27 outs. None of that taking a knee or dribbling out the clock shit.

            3. Buseyism for Baseball:
              Boring and standing eating brats and looking lame

          2. It’s high curling season. That should fill the void.

            1. Nah, I’ll stick with the Professional Bowlers Association.

            2. This is why noobody respects Canadians, eh?

            3. The UEFA CL is heating up, which I suppose is a good thing since none of the domestic leagues is very competitive this season.

  28. Watching The Amazing Spider Man. Emma Stone is so on my celebrity waiver list!

    1. From ‘For Your Eyes Only’, IIRC.

      1. and Carole Bouquet

  29. lol, I use whole disk encryption anyways, they can try if they want to lol.

  30. Is anyone besides spambot here, this early?

    1. You beat me by a minute over on Baylen’s ersatz Morning Links thread.

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