9th Circuit Gets Tough on Border Gadget Searches
The ruling still allows the search of the defendant’s gear because in the court’s review they determined that reasonable suspicion of sex tourism did exist.
“A person’s digital life ought not be hijacked simply by crossing a border,” she added. “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.”
At the same time, a forensic search of a device can reveal each and every file, even deleted ones.
“Such a thorough and detailed search of the most intimate details of one’s life is a substantial intrusion upon personal privacy and dignity,” McKeown wrote. “We therefore hold that the forensic examination of Cotterman’s computer required a showing of reasonable suspicion, a modest requirement in light of the Fourth Amendment.”
That element of the ruling elicited vehement dissent from three judges.
“Whether it is drugs, bombs, or child pornography, we charge our government with finding and excluding any and all illegal and unwanted articles and people before they cross our international borders,” Judge Consuelo Callahan wrote, joined in full by Judge Richard Clifton and partially by Judge Milan Smith.
“Accomplishing that Herculean task requires that the government be mostly free from the Fourth Amendment’s usual restraints on searches of people and their property,” Callahan added. “Today the majority ignores that reality by erecting a new rule requiring reasonable suspicion for any thorough search of electronic devices entering the United States. This rule flouts more than a century of Supreme Court precedent, is unworkable and unnecessary, and will severely hamstring the government’s ability to protect our borders.”
More: Courthouse News Service