On September 25, 2013, the Federalist Society’s Criminal Law & Procedure Practice Group produced a podcast of its Teleforum on “Border Searches, National Security, and the Reasonable Expectation of Digital Privacy.” Participating were Brian Hauss, Legal Fellow at the ACLU Speech, Privacy, and Technology Project, and Andrew J.P. Levy, Former Deputy General Counsel at the Department of Homeland Security. Christian Corrigan, FedSoc’s Director of Publications, served as the moderator.
You can listen to the podcast here.
The subject of the Teleforum was the Ninth Circuit’s decision in United States v. Cotterman, in which the court held en banc that government officials must have "reasonable suspicion" before conducting forensic searches of laptops at the U.S. border. The court's ruling is a departure from the general rule permitting suspicion-less border searches in the interests of national security.
Hauss explained that forensic searches are those that go beyond simply opening up a laptop or similar electronic device and looking at files. Forensic searches include breaking passwords, unencrypting files, and recovering deleted files. To shed light the Cotterman decision, Hauss the earlier case House v. Napolitano, which the ACLU recently settled with the government. According to the facts of the case, David House is an MIT computer scientist who was part of the support network for Bradley Manning, the U.S. Army soldier who was accused of giving secret documents to WikiLeaks. The federal government wanted to question House regarding his connection to WikiLeaks but, according to Hauss, there was no basis for suspecting he was engaged in any criminal activities.
Having set up an alert to be notified the next time House would re-enter the country after he had left, the Department of Homeland Security took House into custody when he arrived back in the U.S. at O’Hare airport. DHS seized his electronic devices, examined them, and took them to DHS headquarters. DHS made a forensic copy of the data and held onto the devices for seven weeks while searching through them. After those seven weeks, the ACLU became involved and set a demand letter to the government that resulted in the devices being returned. The forensic analysis itself lasted seven more months. The ACLU filed a lawsuit making a Fourth Amendment claim that the government required some quantum of suspicion to justify the investigation. The ACLU also made a First Amendment claim on the grounds that the government had targeted House based on his political activities. The District Court held that although no reasonable suspicion was required to search the laptop and similar devices at the border, the continuing seven weeks of custody of the devices did require some reasonable degree of suspicion. The court also held that House had a valid First Amendment claim.
Hauss said that the court’s decision was notable in three ways. First, documents revealed that the government had had no suspicion that House was carrying contraband. Rather, the government’s purpose in searching his laptop was to obtain information it could not have obtained within the country. Second, the case demonstrates just how invasive some laptop searches can be—compare how the Cotterman decision called the search in that case “a digital strip-search.” The search of House’s computer included not just documents potentially related to WikiLeaks but his personal photos, financial information, etc. And third, the government concluded that there was zero evidence that House was engaged in any criminal activity, and that there had been no basis for seizing his devices.
According to Hauss, the Cotterman decision is not a perfect fix for legal questions regarding border searches but it does address a number of problems that arose in House. For one thing, it makes it harder for the government to employ border searches for purposes other than for which they were intended—above all, customs protection. The Cotterman decision also addresses significant privacy and inconvenience issues and it professionalizes the search process, making it more difficult to engage in searches based on impermissible criteria.
Andrew Levy spoke next. He began by providing context for border protection. He said that 4.5 million travelers cross the border a year, and border agents must enforce 600 different laws, including those regarding child pornography, human trafficking, immigration, drugs, intellectual property, espionage, and terrorism. The breadth of those laws is wider than Hauss suggested, he said.
He continued by noting that the Supreme Court has long recognized that the government has an inherent interest in securing the country’s borders, and that there is a “border search exception” to travelers’ Fourth Amendment rights. In practice, any search at the border is per se reasonable (with a few exceptions). Border agents typically have just seconds to decide whether to refer a traveler to secondary screening. Sometimes agents have advanced information but other times rely on what Levy termed “law enforcement expertise, sometimes known as ‘hunches’.” As an example of an important correct hunch, Levy pointed to the Millennium Bomber, Ahmed Ressam. An agent thought Ressam’s behavior unusual, and a subsequent search of his car turned up thousands of pounds of explosives he intended to detonate at Los Angeles International Airport.
Levy said that the investigative tool of searching laptops has in fact been very rarely used. Of over 200 million persons entering the country, only 1,000 laptops were searched. And there were only 46 in-depth searches. These searches have yielded helpful findings, including discovering nuclear information and videos of IEDs being exploded.
Levy made two distinctions. First, the distinction between arriving aliens and U.S. citizens: Although the case law is muddled, there are limitations on the due process rights of aliens. The second distinction is that between ordinary law enforcement and national security. The latter raises the “special needs exception” to the Fourth Amendment, which applies when the purpose of the search is not for ordinary law enforcement—such as drunk-driver checkpoints or searches of schools for drugs for the sake of student safety.
Prior to the Cotterman decision, case law going all the way up the Supreme Court was very clear that the there is a broad exception to Fourth Amendment rights at the border except for non-routine searches—namely, very invasive searches of persons as via a strip-search. Such a limitation of the border search exception had never been applied to the search of property or things. An earlier Ninth Circuit decision made no distinction between paper and electronic data: if all of the contents of a shipping container can be searched, so too can the contents of a laptop. However, no cases had ever touched upon the issue of in-depth searches nor that of the requirement of reasonable suspicion.
In Cotterman, there were four levels of investigation: the initial laptop search, technical assistance (to read encrypted or password-protected files) in-depth analysis, and the copying and retention of data. Levy said that the the degree of suspicion required for a search probably does increase as one moves up the levels.
Levy was concerned that the holding in Cotterman creates a huge loophole for criminals trying to enter the country who wish us ill. Now they know that all they need to do is encrypt or password-protect incriminating evidence. Levy also said he thought the Cotterman decision creates an unworkable standard: What precisely is a forensic exam? Is it simply breaking into encrypted documents, or does it include analyzing the information one has? He also said the decision is problematic doctrinally since it will apply to border searches more complex than that in Cotterman, which regarded child pornography, the evidence of which is clear on its face. In other areas, however, such as terrorism, the data needs to be translated or otherwise analyzed to know what one is looking at. He further predicted the decision will have a chilling effect on border agents, who will be less inclined to perform laptop searches due to the risk of litigation.