9th Circuit adopts "reasonable suspicion" for electronics at border
March 8, 2013 8:02 PM Subscribe
posted by fireoyster (28 comments total)
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In an en banc
decision, the U.S. Court of Appeals for the 9th Circuit has ruled in United States v. Cotterman
that the 4th Amendment standard of reasonable suspicion
applies to forensic searches of electronic devices at an international border.
Further, the ruling (PDF)
says that encrypting or otherwise protecting files--such as with a password--is not sufficient to arouse suspicion. Likening such a search to a "virtual strip search,"
the 9th Circuit Appeals Court held that electronics, because they contain much more information and substantial quantities of "private papers," should be subject to a higher standard than an examination of a person's vehicle or cursory search of luggage. Though the Cottermans' laptop was taken to a facility 170 miles from the border, the search was ruled as having taken place at the border because that is where the laptop was seized. In this case, the search was deemed to have met the required, higher standard.
The dissent references United States v. Montoya
as evidence that the United States Supreme Court has held the "border search exemption" as unyielding and requiring no suspicion, thus meaning that the Cotterman
majority should not have reached the holding it did.