Metropolitan News-Enterprise


Monday, March 11, 2013


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Ninth Circuit Rules En Banc:

Border Search of Laptop Requires ‘Reasonable Suspicion’


From Staff and Wire Service Reports


Border Patrol agents must have reasonable suspicion of criminal activity before conducting comprehensive searches of laptops or other digital devices, the Ninth U.S. Circuit Court of Appeals ruled Friday.

Eight judges of an 11-judge limited en banc court rejected the government’s claim that its authority to conduct suspicionless searches of persons entering the country extends to forensic examinations of electronic devices, even when those devices have to be taken to distant locations for more intensive review than can occur at a point of entry.

“A person’s digital life ought not be hijacked simply by crossing a border,” Judge M. Margaret McKeown wrote for the court. Civil liberties activists called the decision a significant victory for privacy rights, even though the panel upheld the search specifically at issue in the case, while the government seemed likely to seek Supreme Court review.

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, according to evidence presented at a magistrate judge’s hearing on Cotterman’s motion to suppress.

Operation Angel Watch

Cotterman was targeted as part of Operation Angel Watch, which monitors the comings and goings of convicted sex offenders whom the government suspects may be involved in child sex tourism. Cotterman had been convicted of several child-related sex offenses in 1992, and was referred to secondary inspection at the Lukeville, Ariz. point of entry when he and his wife returned from a trip to Mexico.

Agents seized two laptops and three digital cameras. Finding nothing untoward during an examination at the point of entry, they took the devices to an Immigration and Customs Enforcement office in Tucson, 170 miles away, for examination by a forensic specialist.

Two of the cameras were returned to Cotterman, who retrieved them in Tucson not long after the initial seizure. The rest of the devices were subjected to sophisticated examination by a forensic specialist, who told Cotterman he needed his assistance in gaining access to password-protected files.

The specialist did not tell Cotterman that he had already found 75 images of child pornography in the unallocated disc space on one of the laptops. Cotterman said he would come in, but didn’t do so, and flew to Australia within days.

The government continued to examine his devices over the next several months, eventually finding hundreds more images, mostly depicting the same girl. She appeared to be between 7 and 10 years of age, and to have been photographed over a two-to-three-year period, and in some of the images appeared to be being molested.

Child Pornography Indictment

The grand jury indicted Cotterman on child pornography charges. U.S. District Judge Raner Collins of the District of Arizona, adopting the recommendations of the magistrate judge, held that the extensive search required reasonable suspicion, which the judge found to be lacking, and granted the motion to suppress.

A three-judge panel of the Ninth Circuit reversed, saying reasonable suspicion was not required. Senior Judge Betty B. Fletcher, since deceased, dissented.

McKeown Friday agreed with Fletcher that the traveling public has some expectation of privacy in the contents of electronic devices.

“Electronic devices often retain sensitive and confidential information far beyond the perceived point of erasure, notably in the form of browsing histories and records of deleted files,” the judge reasoned. “This quality makes it impractical, if not impossible, for individuals to make meaningful decisions regarding what digital content to expose to the scrutiny that accompanies international travel….When packing traditional luggage, one is accustomed to deciding what papers to take and what to leave behind. When carrying a laptop, tablet or other device, however, removing files unnecessary to an impending trip is an impractical solution given the volume and often intermingled nature of the files.”

The judge went on, however, to conclude that the agents had an objectively reasonable suspicion that Cotterman had contraband on his computers, given his prior conviction and the fact that he was returning from a well known child sex tourism destination with multiple electronic devices.

McKeown was joined by Chief Judge Alex Kozinski and Sidney R. Thomas, Kim McLane Wardlaw, Raymond C. Fisher, Ronald M. Gould, Mary H. Murguia, and Morgan Christen.

Concurring, Dissenting Opinions

Judge Consuelo Callahan wrote separately, agreeing that there was no illegal search and arguing that reasonable suspicion was not required, either for the initial search or for the more extensive examination at Tucson. The majority’s view, she said, 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.”

Judge Richard R. Clifton joined Callahan, while Judge Milan D. Smith Jr. argued that there was no need for reasonable suspicion at the border, but that the intensified search was an illegal “extended border search.”

The facts relied on by the majority, he said, were “a rather weak lynchpin for reasonable suspicion.” And the rule laid out by the court, he opined, “sweeps in thousands of innocent individuals whose electronic equipment can now be taken away from the border and searched indefinitely, under the border search exception.”

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 suspicion.

“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.

The U.S. Attorney’s Office in Arizona declined to comment on the case.

 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.

The case is United States v. Cotterman, 09-10139.


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