On Friday, April 6, 2007, Howard Cotterman and his wife, Maureen, drove across the border from Mexico, seeking reentry to the United States at the Lukeville, Arizona Port of Entry (POE).[ref]United States v. Cotterman, 637 F.3d 1068, 1070-71 (9th Cir. 2011), reh’g granted, 673 F.3d 1206 (9th Cir. 2012).[/ref] A primary inspection of Cotterman’s passport revealed an alert due to Cotterman’s 1992 conviction for sex offenses involving a minor, and a Customs and Border Protection (CBP) officer conducted a secondary inspection of the Cottermans’ vehicle.[ref]See id. at 1071; see also 19 U.S.C. § 1582 (2006) (authorizing government to detain and search anyone entering United States from foreign country).[/ref] The CBP officer found two laptop computers and three digital cameras, and he contacted the Immigration and Customs Enforcement (ICE) office in Sells, Arizona for assistance when he discovered that many of the computer files were password protected. Two ICE agents drove from Sells to Lukeville, collected the laptops, and delivered them to a computer forensic examiner at the ICE lab in Tucson late that same night.[ref]See Cotterman, 637 F.3d at 1071-72; see also United States v. Cotterman, No. CR 07-1207-TUC-RCC, 2009 WL 465028, at *2 (D. Ariz. Feb. 24, 2009) (noting ICE guidelines required forensic examination of Cotterman’s computers due to Treasury Enforcement Communications System alert), rev’d, 637 F.3d 1068 (9th Cir. 2011), reh’g granted, 673 F.3d 1206 (9th Cir. 2012).[/ref]
The forensic examiner worked through the weekend, and by the evening of Sunday, April 8, he had discovered approximately seventy-five images of child pornography on Cotterman’s laptop.[ref]See Cotterman, 637 F.3d at 1072. The forensic examiner in Tucson did not discover any child pornography on Cotterman’s laptop until two days after the search commenced, and the search eventually continued for several months. Id. at 1072-73.[/ref] Over the days and weeks that followed, the examiner unlocked hundreds of additional photos and videos of a similar nature, most of them involving the same young girl. The federal government indicted Cotterman on child pornography charges on June 27, 2007.[ref]See id. at 1073.[/ref]
Following his federal indictment, Cotterman moved to suppress the evidence collected from his laptop.[ref]See id.[/ref] Cotterman argued that federal agents discovered the evidence through an unreasonable, nonroutine border search, as the search failed to meet the heightened standard of suspicion of criminal conduct required for such searches.[ref]See Cotterman, 2009 WL 465028, at *3 (offering defendant’s reasoning). The Ninth Circuit has held that the intrusiveness of the search distinguishes “routine” from “nonroutine” border searches. See United States v. Tsai, 282 F.3d 690, 694 (9th Cir. 2002) (holding degree of intrusiveness as “critical factor”); United States v. Ramos-Saenz, 36 F.3d 59, 61 (9th Cir. 1994) (noting intrusive search may require reasonable suspicion). But see United States v. Arnold, 533 F.3d 1003, 1007-08 (9th Cir. 2008) (holding “sliding intrusiveness scale” does not mandate reasonable suspicion for border search of laptop); Tamara Kessler, Office for Civil Rights & Civil Liberties, U.S. Dep’t of Homeland Security, Civil Rights/Civil Liberties Impact Assessment: Border Searches of Electronic Devices 2 (Jan. 29, 2013), available at http://www.dhs.gov/sites/default/files/publications/crcl-border-search-impact-assessment_01-29-13_1.pdf (concluding reasonable-suspicion requirement for border search of electronics “would be operationally harmful”); see also Susan Stellin, Border Agents’ Power to Search Devices Is Facing Increasing Challenges in Court, N.Y. Times, Dec. 3, 2012, http://www.nytimes.com/2012/12/04/business/court-cases-challenge-border-searches-of-laptops-and-phones.html (noting border searches of electronics, protected under Fourth Amendment, may violate First Amendment).[/ref] The Government, however, argued that the search of Cotterman’s computer files fell within the routine border-search exception, which does not require a heightened standard of individualized suspicion.[ref]See Cotterman, 2009 WL 465028, at *3.[/ref] The district court agreed with Cotterman, granting his motion to suppress and holding that the search failed to meet the requisite heightened standard.[ref]See id. at *8.[/ref] On appeal, the Ninth Circuit reversed the district court, holding that neither the relocation of Cotterman’s laptop nor the delay necessary to search it fully were unreasonable for a routine border search, given the circumstances of the seizure.[ref]See United States v. Cotterman, 637 F.3d 1068, 1070 (9th Cir. 2011) (determining neither scope of search nor duration of seizure egregious), reh’g granted, 673 F.3d 1206 (9th Cir. 2012).[/ref] Now, the Ninth Circuit has reheard the case en banc, with the opinion pending before the court.[ref]See United States v. Cotterman, 673 F.3d 1206 (9th Cir. 2012) (vacating decision and granting rehearing en banc). The rehearing took place on June 19, 2012. See Robyn Hagan Cain, Cotterman v. U.S.: Live-Blogging the Border Search Doctrine Appeal, FindLaw (June 18, 2012, 9:01 AM), http://blogs.findlaw.com/ninth_circuit/2012/06/cotterman-v-us-live-blogging-the-border-search-doctrine-appeal.html.[/ref]
Privacy and National Security: A Delicate Balance
Under the Fourth Amendment, individuals maintain a reasonable expectation of privacy in both their persons and property, and any search or seizure must meet certain standards of reasonableness for seized evidence to be admissible.[ref]See U.S. Const. amend. IV; Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring) (outlining two-part analysis to determine validity of search based on reasonableness of expectations). A court must examine whether the individual had a subjective expectation of privacy, and whether society recognizes that expectation of privacy as reasonable. See Katz, 389 U.S. at 361. But see Robert M. Bloom, Border Searches in the Age of Terrorism, 78 Miss. L.J. 295, 298 (2008) (noting individual rights curtailed due to security concerns).[/ref] The Fourth Amendment’s protections are not absolute, however, as federal courts have created limited exceptions for warrantless searches.[ref]See Chandler v. Miller, 520 U.S. 305, 308 (1997) (noting limited circumstances not requiring individualized suspicion); United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985) (treating reasonableness of privacy expectation differently at international border).[/ref] The judicially created border-search doctrine gives the government broad authority to conduct searches of persons and property seeking entry at the country’s borders.[ref]See United States v. Ramsey, 431 U.S. 606, 623 n.17 (1977) (contrasting constitutional authorization of customs officials with absence of statutory right to rights). But see United States v. Brignoni-Ponce, 422 U.S. 873, 882 (1975) (declining to grant government unlimited discretion under reasonableness requirement of Fourth Amendment).[/ref] A person seeking entry (or reentry) into the United States abandons the usual expectation of privacy and subjects himself to a routine search of his belongings by government officials.[ref]See Montoya de Hernandez, 473 U.S. at 539.[/ref] National security interests support protecting the integrity of the country’s borders, creating a policy rationale for the lessened standard of suspicion governing searches conducted there.[ref]See Ramsey, 431 U.S. at 618-19.[/ref]
The Ninth Circuit has determined that whether a search is routine or nonroutine is largely based on the degree of intrusiveness of the search at the border.[ref]See United States v. Tsai, 282 F.3d 690, 694 (9th Cir. 2002); see also Warrantless Searches and Seizures, 39 Geo. L.J. Ann. Rev. Crim. Proc. 43, 119 (2010).[/ref] While a nonroutine border search requires reasonable suspicion of the search’s target, the Ninth Circuit considers the search of a vehicle—even an extensive search—routine and therefore constitutional, despite the absence of any particularized suspicion.[ref]See United States v. Flores-Montano, 541 U.S. 149, 152 (2004) (determining even highly intrusive border searches of vehicles do not require suspicion).[/ref] The Ninth Circuit has embraced an extended border-search doctrine, which furthers the government’s authority to conduct searches away from—but near to—the physical border subsequent to the individual’s seeking entry. However, for these extended border searches to be constitutional, the government must meet the heightened standard of reasonable suspicion.[ref]See United States v. Villasenor, 608 F.3d 467, 471-72 (9th Cir. 2010); United States v. Sahanaja, 430 F.3d 1049, 1054 (9th Cir. 2005) (determining extended border search requires reasonable suspicion of both border crossing and crime or contraband).[/ref]
The Ninth Circuit has afforded the government broad authority in searching electronic devices while conducting border searches.[ref]See United States v. Arnold, 533 F.3d 1003, 1007-08 (9th Cir. 2008) (holding government may conduct intrusive border search of laptop computer without particularized suspicion). A search of property does not constitute the same privacy invasion as a search of the person. See id. at 1008; see also Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531, 565 (2005) (predicting further shrinking of constitutional protections as technology advances); Timothy D. Martin, Note, Hey! You! Get Off of My Cloud: Defining and Protecting the Metes and Bounds of Privacy, Security, and Property in Cloud Computing, 92 J. Pat. & Trademark Off. Soc’y 283, 301 (2010) (describing risks of search and seizure for users of cloud technology).[/ref] The court previously held that border searches of laptop computers are routine and therefore do not require reasonable suspicion.[ref]See Arnold, 533 F.3d at 1007-08 (permitting suspicionless border search of laptop computer).[/ref] Further extending the border-search doctrine, the Ninth Circuit has included searches taking place at the border’s functional equivalent, not just at the physical border.[ref]See United States v. Ramos-Saenz, 36 F.3d 59, 61 (9th Cir. 1994) (holding search routine at functional equivalent of border); see also United States v. Abbouchi, 502 F.3d 850, 855-56 (9th Cir. 2007) (recognizing regional UPS hub where packages ship internationally as functional border equivalent). The Supreme Court has held that functional border equivalents include the convergence of two roads extending from the border, or an airport that receives international flights many miles—or even states—away from the physical border. See Almeida-Sanchez v. United States, 413 U.S. 266, 272-73 (1973).[/ref]
Extended Border-Search Doctrine: How Far Is Too Far?
In Cotterman, the Ninth Circuit’s prior opinion considered the application of the border-search doctrine to laptop computers and other electronic devices. The majority determined that the search of Cotterman’s laptop fell within the border-search doctrine, for which no reasonable suspicion was necessary to conduct the search.[ref]See United States v. Cotterman, 637 F.3d 1068, 1075-76 (9th Cir. 2011), reh’g granted, 673 F.3d 1206 (9th Cir. 2012).[/ref] Although the Government removed the computer from the border to conduct a thorough forensic search, the court reasoned that this did not constitute an extended border search requiring reasonable suspicion.[ref]See id. at 1079.[/ref] The majority also distinguished a computer search from property searches of a highly intrusive, invasive, or destructive nature.[ref]See id. at 1079-80; see also United States v. Ramsey, 431 U.S. 606, 617-18 (1977) (citing Carroll v. United States, 267 U.S. 132, 153-54 (1925) (noting national security interest warrants stopping travelers upon entry into country)).[/ref] The Ninth Circuit subsequently reversed the district court’s order granting Cotterman’s motion to suppress and remanded the case to the district court.[ref]See Cotterman, 637 F.3d at 1070.[/ref]
Judge Fletcher dissented, arguing that the court failed to distinguish search from seizure and therefore left open the possibility of the government seizing personal property for days, weeks, or months without any suspicion.[ref]See id. at 1084 (Fletcher, J., dissenting) (describing alarming scope of government’s authority to conduct exhaustive searches absent suspicion of contraband).[/ref] Judge Fletcher argued instead that the circumstances surrounding the scope of the Government’s lengthy detention of Cotterman’s laptop required individual suspicion. The seizure deprived Cotterman of his possessory interest without any clear limit on the scope of the search, Judge Fletcher wrote, and the search therefore intruded on his reasonable expectation of privacy.[ref]See id. at 1084-85 (Fletcher, J., dissenting). Judge Fletcher distinguished between the reasonable expectation that one’s belongings will be searched at the border and the unreasonable expectation that one’s belongings will be seized, perhaps for weeks or months, without any suspicion. See id. at 1085.[/ref]
As the Ninth Circuit acknowledged in Cotterman, the border-search doctrine stands as a crucial exception to the Fourth Amendment’s guarantee against unreasonable searches and seizures.[ref]See United States v. Cotterman, 637 F.3d 1068, 1078, 1084 (9th Cir. 2011), reh’g granted, 673 F.3d 1206 (9th Cir. 2012); see also Ramsey, 431 U.S. at 616 (noting sovereign right to protect itself through border searches).[/ref] Even when balanced against the rights enjoyed by all individuals, the security interests of the sovereign remain paramount, and suspicionless searches are essential to protecting the country’s borders.[ref]See United States v. Flores-Montano, 541 U.S. 149, 152-53 (2004).[/ref] This balancing test creates a necessary tension between national security interests and the personal privacy of individuals subjected to border searches.[ref]See Bloom, supra note 12, at 298 (detailing reasonable balancing of interests in age of terrorism).[/ref] Both the majority and the dissent observed that advances in portable computers and other electronic devices further complicate this balancing test, as the difficulty in accessing encrypted data threatens to make searches increasingly invasive. An otherwise routine border search becomes more intrusive if government officials cannot access property using normal means that fall within the scope of their search authority.[ref]See Martin, supra note 20, at 300 (suggesting cloud technology will further complicate government’s ability to conduct border searches).[/ref]
By granting a rehearing, the Ninth Circuit implicitly acknowledged Judge Fletcher’s concerns about the extent to which the majority’s holding broadened the government’s increasingly unbridled search and seizure power at the border.[ref]See Cotterman, 637 F.3d at 1085-86 (Fletcher, J., dissenting) (stressing data storage capability of modern computers).[/ref] The majority weighed the sovereign’s interests heavily, permitting a lengthy and suspicionless seizure of property despite the constitutional protections of the Fourth Amendment. While that right—freedom from unreasonable searches and seizures—is not absolute, its further erosion would be difficult to halt under the Ninth Circuit’s original opinion, a fact perhaps recognized by the court’s grant of a rehearing.[ref]See Bloom, supra note 12, at 298 (discussing steady curtailing of rights during war on terror).[/ref] The court had insisted on a case-by-case analysis of the reasonableness of a border search, and the majority scoffed at the “parade of imagined horribles” conjured by those who seek to draw a clearer line between the country’s national security interests and an individual’s privacy right.[ref]See United States v. Cotterman, 637 F.3d 1068, 1079 n.13 (9th Cir. 2011), reh’g granted, 673 F.3d 1206 (9th Cir. 2012); see also Sunil Bector, Note, “Your Laptop, Please”: The Search and Seizure of Electronic Devices at the United States Border, 24 Berkeley Tech. L.J. 695, 695 (2009) (noting unsympathetic defendants, such as those possessing child pornography, in many laptop border-search cases).[/ref] Ultimately, the best solution may require congressional action, setting specific limits on the number of hours or days during which an electronic device may be seized pursuant to a routine border search.[ref] See Border Security Search Accountability Act of 2011, H.R. 216, 112th Cong. § 2(b)(3) (2011) (recommending determination of set number of days appropriate to retain electronic device for search). The bill, which died in committee, suggested new guidelines with respect to the copying and long-term retention of data collected during search of electronic devices. See id. § 2(b)(4).[/ref]
Border searches of laptop computers present relatively new opportunities to obtain vast amounts of personal information concerning those entering the United States. While government officials attempt to take advantage of these search opportunities, continued advances in computer technology will make searches more difficult to conduct, thereby extending the period of time needed for each search.[ref]See Kerr, supra note 20, at 541-42 (noting effects of modern computer-storage devices on portability of information).[/ref] The Ninth Circuit’s opinion neither demanded a reasonable-suspicion standard for border searches of laptops nor defined a reasonable period of time in which to conduct them, thus permitting government officials to search a personal computer until they find evidence of a crime regardless of whether there is any individualized suspicion.[ref]See Cotterman, 637 F.3d at 1086-87 (Fletcher, J., dissenting) (considering majority opinion’s effect on limits of government authority); see also Kerr, supra note 20, at 544 (noting duration of computer search limited only by time available to forensic examiner).[/ref] The court sought clarification on both issues upon rehearing.
A Question for the Supreme Court?
Terrorist plots, drug trafficking, and child pornography present scenarios that easily justify broadening the government’s authority to conduct invasive and prolonged searches at the border. Nevertheless, this expansion of the border-search doctrine could submit any traveler’s electronic files to an invasive computer search of unknown duration.[ref]See Cotterman, 637 F.3d at 1086 (Fletcher, J., dissenting) (discussing computer forensic searches as “particularly offensive” in absence of reasonable suspicion).[/ref] By finding the detention of a laptop computer reasonable for any duration necessary to conduct a comprehensive search, the Ninth Circuit initially granted the government excessive latitude for conducting border searches.[ref]See Kerr, supra note 20, at 544 (suggesting endless potential duration of computer searches).[/ref] If the en banc panel issues an opinion consistent with the original, citizens traveling abroad should carefully consider the contents of their laptops, cell phones, and other devices before bringing them along and subjecting them to an exhaustive search upon return.
The Fifth Circuit has also defined the border-search doctrine broadly, but other courts of appeals have varied when applying the doctrine.[ref]Compare United States v. Cervantez-Valerio, 275 F. App’x 417, 420 (5th Cir. 2008) (rejecting contention of unconstitutionality where border search continued two hours without uncovering contraband), and United States v. Martinez, 481 F.2d 214, 217-18 (5th Cir. 1973) (applying border-search doctrine to search 150 miles from entry after six days of surveillance), with United States v. Whitted, 541 F.3d 480, 488 (3d Cir. 2008) (requiring reasonable suspicion for border search of passenger cabin on cruise liner from foreign port), and United States v. McGinnis, 247 F. App’x 589, 597 (6th Cir. 2007) (Clay, C.J., dissenting) (suggesting misapplication of extended border-search doctrine where laptop revealed evidence unrelated to original suspicion).[/ref] The Ninth Circuit’s rehearing presented an opportunity to address the proper determination of ‘reasonableness’ under the border-search doctrine, but also pointed to the likelihood of the Supreme Court taking up the issue. National security interests are in conflict with the privacy rights of every international traveler, and while the border-search doctrine has balanced those interests in the past, Cotterman opened wide the floodgates. Anyone entering or reentering the United States with a laptop or other electronic device would find those devices subject to seizure of substantial duration, as well as a search that raises questions about reasonableness. The Supreme Court will likely need to define the scope of the border-search doctrine for the digital age, and the Ninth Circuit’s rehearing en banc sets the stage for that to happen.[ref]See John T. Floyd, Will the Fourth Amendment Protect Your Laptop at the Border?, GPSolo, Nov.-Dec. 2012, at 44, 46-47, available at http://www.americanbar.org/publications/gp_solo/2012/november_december2012privacyandconfidentiality/will_fourth_amendment_protect_your_laptop_border.html (speculating issue to appear before Supreme Court very soon).[/ref]
The Ninth Circuit issued their decision in the case on March 8th. It can be found at http://cdn.ca9.uscourts.gov/datastore/opinions/2013/03/08/09-10139.pdf.
Hilary Detmold, Case Note, The Ninth Circuit’s En Banc Rehearing of Cotterman: What’s on Your Laptop?, 1 Suffolk U. L. Rev. Online 32 (Feb. 25, 2013), http://www.suffolklawreview.org/detmold-cotterman.