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Here’s a travel warning you won’t get from the State Department: The Ninth Circuit last week held that police may seize digital devices at the border, transport them 170 miles to a forensics lab and search them during a two-day period, all without reasonable suspicion.
The decision marks the latest piecemeal expansion to the so-called border-search exception to the Fourth Amendment, which holds that people have a reduced expectation of privacy in their belongings when they travel across international borders.
The Supreme Court and Congress have long recognized a border-search exception. The Ninth Circuit, however, in 2008 was the first court to expressly find that it extends to suspicionless searches through a traveler’s laptop. Last Thursday, the court in United States v. Cotterman reasoned that “logic and practicality” allow police to extend those searches for several days at secondary sites.
Civil liberties groups have objected to the government’s ability to search laptops at the border. After the Ninth Circuit in United States v. Arnold extended the exception to suspicionless laptop searches, the Electronic Frontier Foundation, along with others, penned a letter to Congress urging it to adopt protocol to subdue abusive searches. The group protested that laptops often contain highly private information, such as trade secrets and attorney-client correspondence. Notwithstanding that, government agents searched around 1,000 laptops at the border between 2008 and 2009.
The Supreme Court has held that the government may conduct “routine” border searches with neither a warrant nor suspicion. In contrast, “non-routine” searches — such as prolonged detentions, strip searches and body-cavity searches — often require at least a reasonable suspicion that the person possesses contraband. The Fourth and Fifth Circuits have also upheld laptop border searches.
The Cotterman court again rejected the argument that a laptop search is not routine. It also refused to conclude that moving the laptop to another location created an extended border search, reasoning that doing so would reward the suspect who encrypts or obscures evidence within the hard drive. The court referred to the fact that Cotterman had encrypted a number of his folders, which led police to transport the laptop to forensic specialists who could bypass the password.
Cotterman faces charges related to possession, production and transportation of child pornography.
- Mike Walker
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