Sunday, April 07, 2013

Welcome Back Cotterman. You are Under Arrest.

The scope of Customs and Border Protection's authority to search and seize digital devices including laptops and phones has been a matter of controversy for several years. The most recent detailed discussion of this from a federal court is in United States v. Howard Cotterman.

As with many of these cases, the facts are unpleasant. Mr. Cotterman drove from Mexico into the United States via the Lukeville, Arizona port of entry (formerly known as Gringo Pass). Lukeville has a population of 35.

Cotterman is a registered sex offender who was previously convicted of several child-sex related offenses. Because of that history, Cotterman's name was in Customs and Border Protection's database as someone who may be carrying child pornography into the country. A secondary inspection located two laptop computers and three digital cameras. The laptop contained many password protected files. After approximately six hours, Immigration and Customs Enforcement Agents took the laptops and one camera for further forensic investigation. After making a copy of the memory card and finding nothing incriminating on it, the digital camera was returned to Cotterman the next day. Another day later, forensic examination of one of the laptops disclosed 75 images of child pornography. These images were in unallocated space, meaning that they had been deleted or were temporary files previously viewed on websites. When Customs tried to arrange to have Cotterman come in, ostensibly to provide passwords, it was determined that he had boarded a flight to Mexico with his final destination being Australia. Shortly thereafter, ICE was able to access hundreds of images and videos depicting child pornography. Many of these images showed Cotterman engaging in sexual activity with the same girl over a two- to three-year period commencing when the victim was about seven. He was arrested in Australia and extradited to the U.S.

At his trial, Cotterman moved to suppress the electronic evidence on the grounds that it had been seized in violation of the Fourth Amendment. The district court agreed on the grounds that the search occurred 170 miles away from the border at the ICE office and that it was concluded at least 48 hours after the border crossing.

This is where we need to start talking about the law, rather than the sordid facts. The Fourth Amendment protects individuals from unreasonable search and seizure of their property. A search is usually considered to be unreasonable if the law enforcement officer does not have a warrant or a reasonable particularized suspicion of criminal activity. But, the law has long been that when someone presents themselves or their property at the border, a thorough (but not unconscionable) search of the person and the property is reasonable by virtue of the search taking place at the border. This is sort of the price of admission into the United States and is consistent with a sovereign nation's right to control its borders. Thus, the question put to the en banc Ninth Circuit Court of Appeals was whether the fact that this search was away from the border crossing both in distance and in time mean that the border search doctrine dis not apply.

A majority of the Ninth Circuit sitting en banc found that a "border search" need not be confined to be border either in time or space. Rather, the question is whether the individual would have a reasonable expectation that he or she or the property would be subject to a higher or lower level of privacy. In this case, the detention and seizure of the property began at the border at the time of the attempted entry when Cotterman should have known he was subject to a lesser degree of Fourth Amendment protection. More specifically, Cotterman and most of his property were never cleared for entry. Legally, he was still at the border although he was physically in the country. [Note, that last sentence is mine, not the Court's.]

That does not take care of the issue. It is still possible for a border search to be unreasonable in the absence of reasonable suspicion. In cases where the search is both comprehensive and intrusive, the Fourth Amendment will require reasonable suspicion. In this case, the uniquely sensitive nature of data stored on electronic devices and retained electronically after the "perceived point of erasure," creates a significant expectation of privacy. Thus, this search was more intrusive than the search of other forms of property.

That is a very significant finding. It differentiates between digital media and all other forms of property for purposes of Fourth Amendment review. That is likely to make it far more difficult for Customs and Border Protection to make digital media search decisions "on the fly" as passengers and others enter the country. While a "quick look" will almost certainly be permissible, Customs will have to determine both whether there is reasonable suspicion for a "comprehensive and intrusive" search as well as whether the particular search to be undertaken is unreasonably comprehensive and intrusive.

Certainly, CBP Officers have precisely the same ability to do this analysis as does any other law enforcement official who encounters suspicious activity. But, the unique nature of passengers and vehicles lining up for the usually short interchange with Customs and Border Protection will add difficulty to the job. Of course, that is not meant as a defense of a potentially unconstitutional search. It is only an observation of a practical reality. It is also a point made by a dissenting judge.

Under these facts, the en banc Ninth Circuit found that the intrusive search was, in fact, justified. The alert in the Customs system showing prior child-sex related convictions, frequent foreign travel, and the collection of electronic equipment created reasonable suspicion to justify the search. It made this finding despite an apparent government concession that there was no reasonable basis for suspicion.

The Court noted that password protected files are commonly used by law-abiding citizens including business travelers to protect files. The presence of password protected files alone, therefore, would not be sufficient to create a reasonable suspicion of criminal activity. However, when combined with other evidence of possible criminal activity, the presence of password protected files may be considered by law enforcement in deciding whether to conduct an intrusive search.

The Ninth Circuit majority referred to this as a "watershed" case. It may well be. According to the dissent, it has created a split among the circuits. That means it may well be teed up for Supreme Court review.

The video of this oral argument is available on You Tube and embedded below. The audio is available here. It is a big deal case and worth a read.

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