9th Circuit Says No to "Computer Strip Searches," Narrows Border Search Doctrine, and May Change the Canada-U.S. Security & Trade Relationship Too

By Keith Edmund White

CrimPro meets border policy courtesy of child pornography.  Why an apparent court victory for digital privacy rights might be a 21st century Trojan horse, and its impact on the Canada-U.S. border security and trade relationship. 

The 9th Circuit Court of Appeals held today (United States of America v. Cotterman) that reasonable suspicion is needed to forensically examine electronic devices seized during a border search (and not risk having any incriminating evidence kicked out of court).

OK, boiled down:  The 9th put up red light to a "computer strip search" without reasonable suspicion.

Might not sound like a big deal, but this decision reflects an interesting development in the suspicionless searches of personal property (yes, there are times law enforcement officers can search your stuff without showing an iota of cause).

Oh, and it might just impact America's border security and trade policies.

Disclaimer:  I haven't fully digested, let alone have the expertise of others, like the Brennan Center for Justice, to fully assess this case.  The post,  found after the jump, simply highlights:

• even a cursory read of the decision's summary suggests that this decision reflects something more complicated than a 'win' or 'lose' for digital privacy rights, and 
• perhaps the most important aspect of the case, whether giving heightened protection against computer strip searches impacts U.S. border security, gets shockingly short attention by the Court.   

A Narrow Victory for Personal Electronic Privacy Rights? 

Why the attention?  This search in question took place at the border.

And as pointed out in Milan D. Smith's dissent:

Until today, federal courts have consistently upheld suspicionless searches of electronic storage devices at the border. 

In the majority's defense, as pointed out by TechDirt, there is a case to be made that this precise question of standards for search personal electronics devices is a novel issue, and given the clear differences between what people keep on their laptops, iPads, or other mobile devices--as opposed to a car--these items merit protection from suspicionless searches at the border.

Also, there's the fact that this search involved more than lifting a laptop cover.  Instead, law enforcement officers forensically examined (i.e. got passed passwords and other personal privacy devices) to see what was on the screen. 

And, the majority comes up with some pretty salacious analogies for the search Cotterman had to endure:

After their initial search at the border, customs agents made copies of the hard drives and performed forensic evaluations of the computers that took days to turn up 

contraband. It was essentially a computer strip search.

Furthermore, what's the big deal?  The majority said the somewhat ridiculous way law enforcement officers search Cotterman's personal electronic device (searching it over 100 miles away from where it was seized) met the reasonable suspicion burden by looking after taking in a totality of the circumstances test (read page 3 to see the factors that caused the court to allow the evidence into court).

Now many instant press reports (ranging from Politico's really wordy recap to TechDirt's better if less secondary source filled article) are cheering this decision.

Why?  Well, not because the defendant won; in fact, the court overturned a lower court's decision to suppress the evidence.

Rather, some commentators are highlighting the legal rule the majority adopts regarding border searches:  that unlike your car or luggage, law enforcement officers must establish reasonable suspicion before searching your personal electronic devices.

But I wouldn't be so quick to praise the decision.

As Smith's dissent points out out:

The majority purports to be concerned with travelers’ “personal privacy and dignity,” its determination that reasonable suspicion exists under the exceedingly weak facts of this case undermines the liberties of U.S. citizens generally—not just at the border, and not just with regard to our digital data—but on every street corner, in every vehicle, and wherever else we rely on the doctrine of reasonable suspicion to safeguard our legitimate privacy interests.

So is the case a victory for privacy rights, a Trojan horse weakening all our rights, or a wash?

Guess we'll need the Supreme Court to figure it out.

Border Searches, Canadian Lawyers, and the U.S.-Canada Border

But what about the policy implications for U.S. border security?  This, for better or for worse, gets short shaft in both the majority and dissenting opinions.

The Canadian Bar Association has an excellent write up of 2009 directives on how to conduct border searches of electronic media:

The DHS says the guidelines will enhance transparency and oversight by ensuring that travellers know their rights and that border officers and agents “understand their responsibilities to protect individual private information.” Civil liberties advocates in the U.S. say the changes, while welcome, do not address their fundamental concern with the DHS’s policy of searching travellers’ laptops without suspicion of wrongdoing.

For the frequent business traveller  it bears repeating: U.S. Customs officers have the authority to search and detain any device capable of storing electronic information for any reason; they can examine the electronic device without the traveller present; they can copy from the device or “detain” the device; and they do not need to obtain the traveller’s consent to conduct the search. “Electronic devices” can include computers, BlackBerrys or similar devices, cell phones, travel drives, DVDs and CD-ROMs, cameras, music and other electronic media players.  [Note:  It's traveller in Canada, and traveler in the States.] 

And you can see the directives up-close and personal at DHS.gov.

Does this decision have any real impact on security at the Canada-U.S. or Mexico-Canada border?  I have no idea.

But this is what Smith's dissent has to say:

The majority’s decision to insulate electronic storage devices from the border search exception unsettles the border search doctrine, places inappropriate burdens on law enforcement, reduces deterrence, and raises serious national security concerns. It also ignores the realities of electronic data transmission and the reduced privacy expectations that accompany much of this data, particularly at the border where “[t]he government’s interest in preventing the entry of unwanted persons and effects is at its zenith.” Flores- Montano, 541 U.S. at 152.

Show just how much real-world impact factors in these decisions, the majority counters Smith's contention by stating:

The greatest obstacle to ferreting out contraband at the border has always been the sheer number of international travelers. Any contention that national security will be critically hampered by stripping border agents of a critical law enforcement tool—suspicionless forensic examinations of electronics—is undermined by the fact that, as a matter of commonsense and resources, it is only when reasonable suspicion is aroused that such searches typically take place.

Privacy, Border Security, and the New Digital Age

It will be fascinating to see how this legal development turns out, and the resulting policy implications for the Canada-U.S. cross-border trade relationship.

Finally, I suspect this decision could make a fascinating wrinkle in a Canada-U.S. moot court problem.

You can read the full decision here or below.