Search and Seizure

Silver Lining in Supreme Court Not Overturning A Decision About Computer Searches at Border

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Wired the other day tried to see the bright side of a seemingly crummy recent Supreme Court action re: searching our electronic devices at borders.

~Aphrodite / Foter.com / CC BY-NC-ND

The jist:

the justices let stand an appeals court's decision that U.S. border agents may indeed undertake a search of a traveler's gadgets content on a whim, just like they could with a suitcase or a vehicle. That is known as the "border search exception" of United States law, where travelers can be searched without a warrant as they enter the country. The Obama administration has aggressively used this power to search travelers' laptops, sometimes copying the hard drive before returning the computer.

However, in a rare win for digital privacy, the 9th U.S. Circuit Court of Appeals' ruling last year concluded that a deeper forensic analysis by border officials using software to decrypt password-protected files or to locate deleted files now requires "reasonable suspicion" of criminal activity — an outcome the justices refused to tinker with today.

That means, in essence, the authorities must have some facts, rather than a hunch, that illegal activity is afoot to perform a forensic analysis on electronics seized along the border of the western United States.

"The nature of the contents of electronic devices differs from that of luggage as well. Laptop computers, iPads and the like are simultaneously offices and personal diaries. They contain the most intimate details of our lives: financial records, confidential business documents, medical records and private emails," the San Francisco-based appeals court ruled (.pdf) last year.

As is often the case where cases set forth good legal principles, the specific person involved in the case, Howard Cotterman, did not benefit from the principle, since the Court believed in his case the authorities did have such reasonable suspicion.

Surprisingly the government did not take issue with the appellate court's conclusion that reasonable suspicion was required for a deeper inspection of gadgets, which have become virtual extensions of ourselves, housing everything from email to instant-message chats to our papers and effects.

The government argued that reasonable suspicion of criminal activity was present. The government told the justices that Cotterman "was suspected of sex tourism" (.pdf) and "petitioner was suspected of being involved in child pornography as part of Operation Angel Watchdog, which targeted registered sex offenders who frequently traveled internationally.

Reason 24/7 on another recent crummy lower court decision on border searches of our electronics.

Hat tip: Laura Gandler