Crowell & Moring

Last week, the 9th Circuit issued a “watershed” en banc decision in United States v. Cotterman, restoring – at least to some degree – digital privacy at US borders.  In a controversial ruling causing a split with other Circuits, the 9th Circuit created limits on the government’s ability to search electronic devices at the border, holding that the government must have “reasonable suspicion” in order to perform a more rigorous “forensic examination” on a computer seized at the border, whereas a “manual search” for files through a computer is permitted.  As Judge McKeown, writing for the majority, described:

We are now presented with a case directly implicating substantial personal privacy interests….We rest our analysis on the reasonableness of this search, paying particular heed to the nature of electronic devices and attendant expectations of privacy.

In Cotterman, government agents performed a manual, cursory search of the defendant’s computer and determined that numerous files were password protected.  After imaging the hard drive, law enforcement officers conducted a forensic examination and discovered hundreds of child pornography images.  The defendant moved to suppress, based upon a lack of reasonable suspicion to justify the search, and the district judge granted the motion.  The government appealed.

Reasonable Suspicion for Forensic Searches.  In Judge McKeown’s opinion, the Court began its analysis by acknowledging that:

“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. This type of material implicates the Fourth Amendment’s specific guarantee of the people’s right to be secure in their “papers.” The express listing of papers “reflects the Founders’ deep concern with safeguarding the privacy of thoughts and ideas — what we might call freedom of conscience — from invasion by the government.”

In the case of Cotterman, the Court specifically held that:

  1. the more invasive “forensic examination” of the defendant’s computer, which involved seizing it for several days while law enforcement software delved into password-protected areas, required a reasonable suspicion by law enforcement that the defendant’s computer hard drive contained illicit material or evidence of either child pornography or child sex tourism.  “It is the comprehensive and intrusive nature of a forensic examination – not the location of the examination – that is the key factor triggering the requirement of reasonable suspicion here;” and
  2. in this instance such reasonable suspicion was present, triggered by the defendant’s conviction 15 years prior for a related offense and the fact that his computer contained password-protected file

Does the 9th Circuit Stand Alone?  The 9th Circuit has moved into uncharted territory with a requirement for a reasonable suspicion standard to be employed for anything more than a cursory review of electronic media at the border.  As the Concurrence (written by Judge Callahan) and the Dissent (written by Judge Smith) point out, the 3rd and 4th Circuits have addressed this issue and come to the opposite conclusion.  This decision limits the 9th Circuit’s own holding in United States v. Arnold, which held a search reasonable when law enforcement officers asked a traveler at the border to “boot [the laptop] up, and looked at what [he] had inside.”  As Judge Smith writes, “the Ninth Circuit stands alone, as it so often does.”

Forensic Examination, Cursory Review, and the Line Between the Two.  The Concurrence challenged that the ruling fails to define either cursory review or forensic examination.  As Judge Callahan wrote:

Regrettably, the majority, dispensing with these well-settled, sensible, and binding principles, lifts our anchor and charts a course for muddy waters.  Now border agents, instead of knowing that they may search any and all property that crosses the border for illegal articles, must ponder whether their searches are sufficiently “comprehensive and intrusive,” Majority at 17, to require reasonable suspicion, and whether they have such suspicion.  In most cases the answer is going to be as clear as, well, mud.  We’re due for another course correction.”

This omission seems problematic for a number of reasons, not the least of which is the burden it places upon government officials working at the border.  Further, the Concurrence and Dissent both emphasize that this ruling may force Customs and Border Patrol agents to make complex legal determinations on the spot, and place government officials in the unenviable position of having to weigh U.S. National Security interests against their own liability under a Bivens action. 

What’s Next.  The 9th Circuit has somewhat aggressively redefined a citizen’s right to privacy in electronic media.  If one accepts their heightened requirements for searches of electronic data at the border, it wouldn’t be a stretch to argue that electronic data enjoys a heightened level of Constitutional protection in other scenarios.  This case may be ripe for review, and the dissent invites the Supreme Court to put the 9th Circuit in line with the other Circuits that have addressed this question.  But perhaps the legacy of this case may be the majority’s claim that technology matters when addressing the reasonableness of a search: Does the sheer amount of data that can be held in a portable electronic device make it fundamentally different from a briefcase or a sealed envelope?  Are more substantive protections required by our Constitution?  What is a forensic examination?  These are the questions that will have larger implications for data privacy rights in the future, and that remain unanswered as of yet.