Border Patrol laptop snooping at US-Mexico security checkpoints is permissible only if Homeland Security has reasonable suspicion that something shady is going on. Quick, superficial searches of electronic devices at border crossings are still okay, however.
That was the ruling of the San Francisco-based US Court of Appeals for the Ninth Circuit, which has jurisdiction over the southern border areas. This decision released on Friday was an en banc ruling, meaning that the entire active roster of the active Ninth Circuit judges ruled on the case. Typically, federal appeals are heard in three-judge panels.
Previous to this ruling (which would not apply at the Canadian border), the Border Patrol had a free hand in how extensively it conducted searches at the security checkpoints — whether that involves vehicles, property, luggage, or electronics, etc. — without a warrant: “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.”
Unreasonable searches and seizures are unconstitutional under the Fourth Amendment. In US v. Cotterman, the court had to determine whether the Border Patrol laptop snooping in question violated civil liberties and privacy rights under the Constitution. In the 82-page ruling, the majority determined that Border Patrol agents can legally engage in an extensive and thorough forensic review of an electronic device only if they first can come up with a reasonable suspicion of criminal activity.
The actual case that made its way to the Ninth Circuit involved a convicted sex offender whose laptop was seized at the US-Mexico border in Arizona after his name showed up in a government database. Agents found evidence of child pornography only after his computer was subject to a comprehensive forensic examination.
In the majority opinion, notwithstanding this particular defendant the court wrote in part: “A person’s digital life ought not be hijacked simply by crossing a border.”
In affirming data privacy at the border, the court added that “Such a thorough and detailed search of the most intimate details of one’s life is a substantial intrusion upon personal privacy an dignity. We therefore hold that the forensic examination of Cotterman’s computer required a showing of reasonable suspicion, a modest requirement in the light of the Fourth Amendment.”
The Border Patrol is supposed to establish reasonable suspicion for an extensive search of digital devices based on the surrounding circumstances on a case-by-case basis which may or not be workable in real-world application.
The ruling is seen as a victory for civil liberties and privacy rights, but it could also be a victory for wrongdoers, as one of the dissenting judges noted:
“Requring border patrol agents to determine that reasonable suspicion exists prior to performing a basic forensic examination of a laptop or other electronic device discourages such searches, leaving our borders open to electronically savvy terrorists and criminals who may hereafter carry their their equipment and data across our borders with little fear of detection.”
The case will very likely be appealed by the Obama administration to the US Supreme Court. The Ninth Circuit has seen its rulings reversed more often than any other federal tribunal.
Having issued a new rule for the Immigration and Customs Enforcement to follow, the court nonetheless upheld the Border Patrol laptop snooping in the case itself based on reasonable suspicion to search Cotterman’s laptop files. Therefore, in the case that brought this issue to the forefront, the evidence was properly admissible in court, after taking all the facts and circumstances into consideration.
Do you think that this Ninth Circuit decision vindicates personal privacy rights or does it jeopardize national security?
[Image credit: Billy Hathorn]