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Ninth Circuit Struggles with Suspicionless Laptop Searches at U.S. Border

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by Justin Shubow
Posted June 20, 2012, 6:43 AM

According to The Recorder:

Four years ago the U.S. Court of Appeals for the Ninth Circuit ruled that an international traveler could be forced to boot up his laptop computer, without any reasonable suspicion, so that files could be inspected at the border.

On Tuesday, an en banc panel sitting in Pasadena wrestled with the next logical step for border-zone searches: whether customs agents can seize a computer and transport it 170 miles for three days of forensic testing on its hard drive.

This was "a lawful border search that required no reasonable suspicion," Assistant U.S. Attorney Carmen Corbin of Arizona told the court.

Virtually every one of the 11 judges on the panel seemed uncomfortable with that position. But after an hour and 15 minutes of intense argument, no clear consensus on a limiting principle had emerged. Chief Judge Alex Kozinski wondered if, without one, the government could routinely seize the electronic devices of every citizen returning to the United States.

Customs agents could say, "We're very busy here. Just leave your computers, iPhones, handhelds — just leave them with us and we'll give them back to you when we're done," Kozinski said. "That would be fine?"

"That's a radical concept, isn't it?" asked Judge Milan Smith.

The defendant in U.S. v. Cotterman, No. 09-10139, Howard Cotterman, was returning from Mexico with his wife in 2007 at the tiny border station in Lukeville, Ariz., when customs officials noticed he had 15-year-old convictions for child molestation. Agents seized two laptop computers and three digital cameras belonging to the couple. Cotterman offered to show them how to access password-protected files, but customs declined, concerned that Cotterman could delete any incriminating files. Instead the laptops and one of the cameras was forwarded to Tucson, where a forensic examiner cracked the passwords and found child pornography images, including some that depicted Cotterman having sex with a girl who appeared to be under 10 years old. Cotterman fled to Australia instead of retrieving his laptop but was arrested there.

He moved to suppress the evidence found on his laptop, but a three-judge panel of the Ninth Circuit refused. Judge Richard Tallman said the search and seizure was not "so egregious to render it unreasonable" under the Fourth Amendment. Judge Betty Fletcher dissented, saying the government should not be allowed to take away a traveler's property for weeks without particularized suspicion.

Civil rights groups argue that under the government's standard, it could search any electronic device for any purpose, such as MP3 players for illegally downloaded music.

At Tuesday's en banc argument, AUSA Corbin noted that the seizure of Cotterman's laptop was necessary only because he had used password protection. That didn't seem to mollify any of the judges looking for a limiting principle.

"Do you know how many people in the United States have a password-protected file on their computers?" asked Judge M. Margaret McKeown.

"Isn't that DOJ policy, that you have password protection on your laptop?" Judge Sidney Thomas asked Corbin. "Does that make you a suspect?"

Given the government's argument that the border is elastic, McKeown asked, could customs do its screening overseas, before travelers board flights to the States? Could they say, "I'm going to take your computer, have a nice flight, we'll get it back to you next week?" McKeown said.

"If that's deemed to be the functional equivalent of our border, then yes," Corbin said.

But neither did the judges seem comfortable with positions taken by defense lawyer William Kirchner and amicus curiae attorney Christopher Handman from Washington, D.C.'s The Constitution Project.

Kirchner said customs should not be allowed to remove property from the border, but that didn't resonate with Judge Richard Clifton. "How does it matter that it's taken away five days and searched at the border or taken away five days and searched in Tucson?" he said.

And Handman, who was seeking a rule that forensic searches of computers could never be performed without reasonable suspicion, was challenged by Judge Raymond Fisher, who pointed out that travelers have to put up with body scans even in the absence of reasonable suspicion.

In 2008, George Mason University law professor Nathan Sales delilvered a talk on laptop border searches to UCLA's FedSoc student chapter.  His presentation went hand-in-hand with his paper "Run for the Border: Laptop Searches and the Fourth Amendment."  He argued that "suspicionless border searches of laptops and other electronic storage devices generally are permissible under the Fourth Amendment." He then discussed "possible legislative or administrative reforms that might better balance travelers' interests against the government's needs."

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