9th Circuit adopts "reasonable suspicion" for electronics at border
March 8, 2013 8:02 PM   Subscribe

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.
posted by fireoyster (27 comments total) 14 users marked this as a favorite
Won't this just get appealed up to SCOTUS and overturned? Honest question - I have no idea.
posted by unSane at 8:04 PM on March 8, 2013

Wikipedia article on case. (I don't like putting wiki links in the main post, but that's just me.) As a bit of commentary, I wonder if this puts a bit of restraint on what the ACLU calls Constitution-free zones.
posted by fireoyster at 8:04 PM on March 8, 2013

There are times when the 9th Circuit makes me feel like screaming, but there are also times when I feel like applauding them. This is the latter.
posted by Chocolate Pickle at 8:04 PM on March 8, 2013 [3 favorites]

Searching laptops at the border: Because border lines are short and uncomplicated, the government is adequately staffed and flush with cash, and private-key encryption doesn't exist and can't be used on the 'net.
posted by schmod at 8:19 PM on March 8, 2013 [3 favorites]

woo! A step in the right direction!

now if only we could get boarder patrols from violating rights granted, we could feel secure.
posted by rebent at 8:19 PM on March 8, 2013

As a non-law scholar I think I'm missing something. The dissent cited something that is almost 30 years old and seemingly out of the current case's context (drug running vs electronic information storage). Was there nothing else good enough or recent enough?
posted by Slackermagee at 8:22 PM on March 8, 2013

Wow, that's a shitty case to go to the wall on, isn't it? Hard cases make bad law, I guess.
posted by unSane at 8:26 PM on March 8, 2013 [1 favorite]

What actually changed here? The evidence is still allowed in. Customs can still take your electronics as long as they thing they have probable cause.
posted by humanfont at 8:29 PM on March 8, 2013

humanfront: As Volokh Conspiracy points out, historically the DoJ hasn't wanted to argue "reasonable suspicion" because they didn't want that higher standard, and most of the cases they argue wouldn't meet that bar so if that standard was applied they could appeal to SCOTUS. In this case, however, the 9th Circuit held both that reasonable suspicion does apply and that the search met the standard. The DOJ wins and, theoretically, can't appeal because it got the result it wanted (the evidence to be included). Cotterman got what he wanted (the reasonable suspicion standard) but the evidence remained because the standard was met.

tl;dr: Previous searches in the 9th Circuit (CA, OR, WA, AK, NV, AZ, HI) at the international border required no suspicion (not "probable cause," nothing at all). Now, for searching electronics that may have private data, at least some suspicion is required and you can't be considered suspicious for having encrypted data.
posted by fireoyster at 8:38 PM on March 8, 2013 [6 favorites]

This is great news. It can still go up to SCOTUS of course if, say the 5th Circuit court splits on the issue (which isn't out of the realm of possibility) but I picture the bench trying to mimic this ruling. Having an exception for international borders is a (some would say necessary and proper) way to deal with the importation of dangerous materials, etc. Data doesn't fit the reasoning behind the exception and would just be used as a loophole for law enforcement to get around the 4th Amendment, which is something even Justices like Scalia tend to not be big on. I think this will hold.
posted by Navelgazer at 8:50 PM on March 8, 2013

Seeing as 'personal papers' is written right in to that 'goddam piece of paper', I can't really see how it could be otherwise. But I tend to be a bit idealistic and flag-wavey about the 4th. (Old fashioned, I know, the 2nd is so much more popular these days).
posted by Goofyy at 9:11 PM on March 8, 2013 [3 favorites]

Cool! Can we shrink the border to less than 100 miles from the border?
posted by Pope Guilty at 9:14 PM on March 8, 2013 [9 favorites]

posted by Simple Answer to a Simple Question at 9:27 PM on March 8, 2013 [11 favorites]

I agree that this is great news. I truly hope that it gets upheld as it progresses through the system. What drives the government and especially the DHS and TSA to constantly overreach their mandates and become more and more intrusive in the lives of innocent, ordinary American citizens? It can't all be to feed a corporate prison system, can it? Defense contractors trying to overcome the lack of shooting wars and associated spendy contracts by re-purposing military gear in the faux war on terror? Some concatenation of these and other profiteers? Rein these suckers in, people.
posted by Purposeful Grimace at 9:30 PM on March 8, 2013 [2 favorites]

Once you create organizations like the DHS and TSA (and any other federal agency), they both execute their stated mission, and seek to perpetuate themselves.


It is also true of organizations of any type in any bureaucracy. Be it aggressive empire building -- status is often tied to how many people work for you -- or simply wanting to make sure the people who currently work for you are protected from cutbacks, all leaders are motivated to expand their organizations.
posted by Tell Me No Lies at 11:12 PM on March 8, 2013 [3 favorites]

There are times when the 9th Circuit makes me feel like screaming, but there are also times when I feel like applauding them.

The 4th Amendment is my favorite when it comes to creating strange bedfellows.
posted by Tell Me No Lies at 11:15 PM on March 8, 2013 [1 favorite]

I think the 3rd is the one about strange bedfellows.
posted by hattifattener at 11:56 PM on March 8, 2013 [14 favorites]

Note, however, that 'reasonable suspicion' is a hell of a lot lower than 'probable cause', which is what the standard should be on electronic devices. Those are intensely personal, and it's exactly like them beating down your doors and reading your diaries because they don't like the way you look on the street.

Reasonable suspicion seems all right for luggage you're carrying, but not electronic data.
posted by Malor at 5:29 AM on March 9, 2013 [4 favorites]

Also the two parts they cite seem pretty broad: if you've ever been convicted of a felony any encrypted data is instantly reasonable suspicion. It's better for non-felons but still pretty shitty as a general case.
posted by Skorgu at 7:02 AM on March 9, 2013

Too bad this won't affect the TSA since I'd guess that is how most of us cross borders.
posted by VTX at 8:23 AM on March 9, 2013

VTX: "Too bad this won't affect the TSA since I'd guess that is how most of us cross borders."

TSA doesn't (theoretically) work at the border. If you're boarding a plane, you may go through pre-clearance on foreign soil which, sometimes, involves interacting with TSA, but the searches and checks at issue are done by Customs and Border Patrol. In addition, these types of searches are supposed to only apply when you are entering the United States because the U.S. has an interest in controlling who enters. If you are exiting, you're at the discretion of whatever country you are entering.
posted by fireoyster at 4:29 PM on March 9, 2013

What drives the government and especially the DHS and TSA to constantly overreach their mandates and become more and more intrusive in the lives of innocent, ordinary American citizens?

Their job, and mandate, is to protect the public from 'bad guys'. It isn't to uphold the publics rights, or strike a balanced position, etc. For example, lets look at the mission statement of the TSA:
The Transportation Security Administration protects the nation’s transportation systems to ensure freedom of movement for people and commerce.
Lets look at the mission of DHS:
  • Preventing terrorism and enhancing security;
  • Securing and managing our borders;
  • Enforcing and administering our immigration laws;
  • Safeguarding and securing cyberspace;
  • Ensuring resilience to disasters;
Note that these are not balanced views or missions. They are not "while balancing the overall long term good of society". We tasked these agencies (and the police) with protecting us. Essentially they do their job best in a police state, and gravitate in that general direction. I'm not saying they consciously want a police state, but the tools of a police state best let them do their job, and do it very effectively.

The idea has always been that we task them with protecting us, but have other arms of government and laws to offset them and ensure the other needs of society, such as freedom and justice, are also served. The TSA/DHS are just part of the system, not the whole. What you should ask is not whether the DHS or TSA is trying its best to do its mission, you should be asking are the protections working? For example, has the department of justice been co-opted instead of trying balance? Is the supreme court still protecting the citizens, or has rampant jingo-ism and fear caused them to forget their core values?

Is the system working?
posted by Bovine Love at 8:48 AM on March 10, 2013 [2 favorites]

TSA doesn't (theoretically) work at the border.

It's not so much that but that the TSA doesn't really work within the confines of the constitution. You don't have to submit to any pat-downs or x-ray scanners or anything else but flying on a plane is optional too. You trade any constitutional protection for the chance to ride the plane.
posted by VTX at 7:41 PM on March 11, 2013

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