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.
Continue Reading The 9th Circuit Takes a Step Toward Stronger Privacy Protections for Electronically Stored Data at the Border