Ninth Circuit notices that we still have some constitutional rights, holding that rights exist at border crossings


I was concerned when United States v. Cotterman was originally decided by the Ninth Circuit in 2011.  In that decision, the panel held that personal property, such as laptops and other digital storage devices, could be transported to a secondary site for a thorough inspection, even with no reason for suspicion.  En banc review was granted in 2012.  On March 8, 2013, in United States v. Cotterman (9th Cir. 2013), the Court, en banc, modified that terrible holding.

The Court observed:

Every day more than a million people cross American borders, from the physical borders with Mexico and Canada to functional borders at airports such as Los Angeles (LAX), Honolulu (HNL), New York (JFK, LGA), and Chicago (ORD, MDW). As denizens of a digital world, they carry with them laptop computers, iPhones, iPads, iPods, Kindles, Nooks, Surfaces, tablets, Blackberries, cell phones, digital cameras, and more. These devices often contain private and sensitive information ranging from personal, financial, and medical data to corporate trade secrets. And, in the case of Howard Cotterman, child pornography.

Slip op., at 5-6.  Framing the issue, the Court continued:

Although courts have long recognized that border searches constitute a “historically recognized exception to the Fourth Amendment’s general principle that a warrant be obtained,” United States v. Ramsey, 431 U.S. 606, 621 (1977), reasonableness remains the touchstone for a warrantless search. Even at the border, we have rejected an “anything goes” approach. See United States v. Seljan, 547 F.3d 993, 1000 (9th Cir. 2008) (en banc).

Slip op., at 7.  The Court recognized that a search of electronic devices must be reasonable, even at the border, given the character of digital information:

Electronic devices often retain sensitive and confidential information far beyond the perceived point of erasure, notably in the form of browsing histories and records of deleted files. This quality makes it impractical, if not impossible, for individuals to make meaningful decisions regarding what digital content to expose to the scrutiny that accompanies international travel. A person’s digital life ought not be hijacked simply by crossing a border. When packing traditional luggage, one is accustomed to deciding what papers to take and what to leave behind. When carrying a laptop, tablet or other device, however, removing files unnecessary to an impending trip is an impractical solution given the volume and often intermingled nature of the files. It is also a time-consuming task that may not even effectively erase the files.

Slip op., at 22.   "This is not to say that simply because electronic devices house sensitive, private information they are off limits at the border. The relevant inquiry, as always, is one of reasonableness. But that reasonableness determination must account for differences in property."  Slip op., at 24.

In this case, the majority concluded that, under the circumstances of the case, the search was reasonable.  Regardless, I am encouraged that, as of now, the mere use of a password to protect data does not provide a reasonable basis for detailed inspection of a computer.