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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).1 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.2 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.3
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.4 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, 2007.5
Following his federal indictment, Cotterman moved to suppress the evidence collected from his laptop.6 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.7 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.8 The district court agreed with Cotterman, granting his motion to suppress and holding that the search failed to meet the requisite heightened standard.9 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.10 Now, the Ninth Circuit has reheard the case en banc, with the opinion pending before the court.11
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.12 The Fourth Amendment’s protections are not absolute, however, as federal courts have created limited exceptions for warrantless searches.13 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.14 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.15 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.16
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.17 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.18 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.19
The Ninth Circuit has afforded the government broad authority in searching electronic devices while conducting border searches.20 The court previously held that border searches of laptop computers are routine and therefore do not require reasonable suspicion.21 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.22
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.23 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.24 The majority also distinguished a computer search from property searches of a highly intrusive, invasive, or destructive nature.25 The Ninth Circuit subsequently reversed the district court’s order granting Cotterman’s motion to suppress and remanded the case to the district court.26
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.27 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.28
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.29 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.30 This balancing test creates a necessary tension between national security interests and the personal privacy of individuals subjected to border searches.31 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.32
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.33 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.34 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.35 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.36
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.37 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.38 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.39 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.40 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.41 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.42
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.