Will the Fourth Amendment Protect Your Laptop at the Border?

Vol. 29 No. 6

By

John T. Floyd (www.johntfloyd.com) is board certified in criminal law by the Texas Board of Legal Specialization. He blogs about current events and legal developments related to criminal law at CriminalJurisdiction (www.johntfloyd.com/blog).

According to a report in the September 9, 2009, San Francisco Chronicle, agents for the U.S. Customs and Border Protection (CBP) encountered more than 221 million travelers at ports of entry into the United States between October 1, 2008, and August 11, 2009. The agents searched approximately 1,000 laptops, of which 46 laptops were subjected to “in-depth” searches. The CBP agents, along with U.S. Immigration and Customs Enforcement (ICE) agents, accessed the business and personal files of the owners during these in-depth searches.

 

Trouble at the Border

These agents did not need reasonable suspicion of criminal activity to conduct these searches because border security inspections are deemed to be qualitatively different from searches conducted in the interior of the United States, which require some level of reasonableness under the Fourth Amendment of the U.S. Constitution. It may surprise some that these border agents can detain laptops (and other electronic devices) indefinitely while mining them for incriminating evidence of criminal activity, such as possession and/or distribution of child pornography, terrorism, or financial crime.

In August 2009 the Department of Homeland Security, of which CBP is a branch, revised its policies concerning indefinite confiscation of laptops and other electronic devices. Under the rule change, CBP agents can detain electronic devices for a “brief, reasonable period” (generally no more than five days) for either on-site or off-site searches. ICE policy, on the other hand, allows its agents to detain the devices for 30 days. Nonetheless, even with these policies in place, there have been instances where electronic devices, especially laptops, have been detained for significantly longer periods of time.

Laptops today are significantly lighter, more compact, and more portable than those of previous generations. They also have steadily replaced desktop computers as a user’s primary computer. In that sense, the laptop today is akin to a previous generation’s family photo album, personal history journal, and business file cabinet. It stores the sum and essence of private and business lives. In many respects, it has become a user’s home away from home, concealing from public view the most intimate details about private affairs. For business professionals, such as lawyers and doctors, laptops contain a wealth of personal information and a warehouse of highly confidential information about clients.

It’s disconcerting to think that upon returning from international travel—whether for personal or business reasons—border agents can, and often do, search and detain laptops for indefinite periods without any reasonable suspicion of criminal activity. A border agent’s whim is sufficient probable cause to search and detain a laptop, notwithstanding the Fourth Amendment protection “of the people to be secure in their persons, houses, papers and effects” against unreasonable searches and seizures without probable cause.

The people’s individual right of privacy disappears at U.S. border security checkpoints and reentry sites because the U.S. Supreme Court has held that the government has an overriding interest, and authority, to protect its “territorial integrity.” The Court has said that the very fact that a search takes place at the border makes it reasonable. Thus, the Fourth Amendment’s right of individual privacy ceases when a person elects to travel abroad and reenter the United States.

It should be noted that the Court has recognized certain limitations on what has been labeled “highly intrusive searches” at border reentry sites. These are body cavity and strip searches, which implicate the “dignity and privacy interests” of the individual, and require “some level of suspicion” before they can be conducted.

The Supreme Court, however, has never addressed whether the search of electronic devices that store personal information constitutes a non-routine “highly intrusive search”—a search that, as the Court said, goes “beyond the scope of a routine custom search and inspection,” and, thus, requires a “reasonable particularized suspicion” of criminal activity before it can be conducted.

 

Welcome Back, Cotterman

In the near future, in the case of the United States v. Howard W. Cotterman, 637 F.3d 1068, 2011 App. LEXIS 6483 (9th Cir. 2011), the Supreme Court will probably be given an opportunity to determine, first, the time, manner, and location in which such a search may be conducted; second, whether the search of a laptop by border agents is a “highly intrusive search”; and, third, what is the requisite level of suspicion, if any, needed to conduct such a laptop search.

The Cotterman case comes from the Ninth Circuit and involves a repeat sex offender who was subjected to a routine border security inspection in Lukeville, Arizona, in April 2007 upon reentry from Mexico. As part of border reentry protocol, ICE agents ran Howard Cotterman’s passport through CBP. This routine check produced a Treasury Enforcement Communication System alert on Cotterman’s name. The alert, which had been placed in the CBP system by ICE agents, stemmed from Cotterman’s 1992 convictions in Long Beach, California, for illegal sexual misconduct with a child and child molestation. The ICE alert instructed border agents to be on the lookout for child pornography when dealing with Cotterman.

The alert prompted border agents to direct Cotterman to a “secondary inspection area” for a more “thorough search” of his vehicle and personal belongings. Before the actual search was conducted, one of the Lukeville agents called ICE authorities in Long Beach and was instructed to “search anything” that could contain child pornography. The ensuing search of Cotterman’s vehicle produced two laptops and three digital cameras. No evidence of child pornography was discovered in the vehicle, and a preliminary search of the laptops did not reveal any evidence of child pornography. Border agents’ suspicions, however, were aroused because many files on the laptops were password protected.

The suspicions by the border agents in Lukeville were conveyed to an ICE supervisor in Sells, Arizona. He and a fellow agent went to the Lukeville port of entry station where they gave Cotterman his Miranda warning and proceeded to interview him. Cotterman did not provide the agents with any incriminating evidence and, in fact, offered to help the agents with the laptops. Not being trained in computers, the agents rejected Cotterman’s offer because they feared (1) he could delete files without their knowing it, (2) the laptops could be “booby-trapped,” and (3) there might be files they could not see even with full access.

Later in the afternoon, Cotterman was informed by the ICE supervisor that he was detaining the laptops and one of the cameras and that the devices would be sent to Tucson for further examination. Cotterman was then allowed to leave the Lukeville station. The laptops were turned over to an ICE computer forensic examiner, who used software to make copies of the laptops’ hard drives. An examination of the camera and one of the laptops revealed no evidence of child pornography. An examination of the second laptop, however, revealed evidence of approximately 75 images of child pornography.

ICE agents informed Cotterman that he could come by the Tucson office to pick up the camera and the hard drive of the clean laptop. Agents told Cotterman they would need his assistance in accessing several password-protected files on the other laptop. Cotterman did not go to the Tucson office. Instead he called the agents informing them that the laptop had multiple users and he would have to contact his business partners to obtain their passwords for the protected files. Cotterman then boarded a flight to Sydney, Australia.

The following day ICE agents learned that Cotterman had left the country. This development prompted the forensic examiner to bypass Cotterman’s security system protecting the 23 files. In the protected files, the examiner discovered 378 images of child pornography, 360 of which involved the same seven- to ten-year-old child, with many of the images depicting Cotterman sexually molesting the child. Other images depicted stories and videos of children.

In June 2007 Cotterman was indicted by a federal grand jury for production of child pornography, possession of child pornography, importation of obscene material, and unlawful flight to avoid prosecution. He was immediately arrested by Australian authorities and extradited back to Arizona.

In April 2008, prior to trial, Cotterman, through counsel, filed a motion to suppress the evidence discovered on his laptop or any “fruits” derived from that evidence. After conducting an exhaustive suppression hearing, the trial court granted the motion in its entirety, finding that the actual search of the laptop occurred two days after Cotterman’s reentry into the U.S. and 170 miles from the border. The trial court reasoned that such an extended border search, in terms of both time and distance, required a “reasonable particularized suspicion” of criminal activity. The trial court also noted, however, that the search conducted by Tucson ICE agents could have been conducted at the border port of entry.

On appeal the government did not take issue with the trial court’s finding that the Tucson ICE agents did not have a “reasonable particularized suspicion” of criminal activity. Instead the government confined its argument to the narrow point that under the “extended border search doctrine,” the Tucson ICE agents did not need a reasonable particularized suspicion because the initial ICE alert not only justified the Lukeville searches but the extended border search in Tucson as well.

In March 2011 a three-judge panel of the Ninth Circuit Court of Appeals issued a ruling that essentially agreed with the government. The panel reversed the trial court’s ruling suppressing the searches. The appeals court noted that the crucial bone of contention in the Cotterman case was whether the government’s inherent power to subject incoming travelers into the United States to routine searches applied to searches conducted away from the border. The three-judge panel held that it did.

This was an issue of first impression for the Ninth Circuit, which explains why the court in March 2012 vacated the panel decision and agreed to rehear the issue en banc (673 F.3d 1206, 2012 U.S. App. LEXIS 5676 (9th Cir. 2012)). Regardless of how the en banc court rules, the issue of whether an extended border search of a laptop requires a “reasonable particularized suspicion” of criminal activity and the collateral issue of whether the search of a laptop constitutes a “highly intrusive search” that requires “some” or a “particularized” suspicion of criminal activity beyond routine border security inspections will eventually find their way to the U.S. Supreme Court.

 

Laptop Protection

It is always difficult to speculate how the Supreme Court will rule on any given issue because of the fractured nature of the Court. However, there may be a glimmer of hope for protecting the inherent personal privacy of a laptop. In January 2012 the Court ruled that a “vehicle” is an individual “effect” requiring “reasonable suspicion” before it can be tracked by a law enforcement–placed GPS device to monitor the vehicle’s movements (United States v. Jones, 132 S. Ct. 945, 181 L.Ed.2d 911, 2012 U.S. LEXIS 1063 (2012)). In fact, Associate Justice Antonin Scalia, writing for the majority, said the government “physically occupied private property” to secure information necessary to constitute a “search” defined by the Founding Fathers when they established the Fourth Amendment.

A laptop is definitely both personal property and a personal effect. The question, then, is whether the government’s invasion of that property/effect beyond a routine border security inspection is a “highly intrusive search” within the parameters of what the Founding Fathers considered to be “unreasonable searches.” No question that the routine border security inspection of a laptop will survive intact, but once the government begins to mine personal files and folders in search of information to support suspicions of criminal activity, that is a proverbial horse of an entirely different color. Given the extensive amount of private personal and business information contained on laptops and even smartphones and other electronic media, it is apparent that most people have grown to believe and expect a certain level of privacy in these items. The government should be required to have a “reasonable particularized suspicion” of criminal activity before it launches an invasion into the personal privacy of a laptop to find such activity.

 

 

 

 

 

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