Justices let stand appeals court decision on border searches of laptops

Decision means federal agents will need reasonable cause to search electronic devices at U.S. borders

In a boost for civil rights advocates, the U.S. Supreme Court upheld a lower court decision that requires U.S. border agents to have at least some cause for searching electronic devices belonging to travelers at the nation's borders.

The court on Monday declined to review a 2013 decision by the U.S. Court of Appeals for the Ninth Circuit in a case involving Howard Cotterman, who was accused of possessing and transporting child pornography.

Cotterman had claimed that the charges against him were invalid because they were based on information gathered without reasonable suspicion or cause from his laptop by U.S. border agents.

The government had argued that the search was valid under the so-called Border Search Exception of U.S. criminal law that allows customs agents to conduct searches at any time and for any reason, without showing cause.

A U.S. District Court that first heard the Cotterman case ordered the evidence suppressed because it had been gathered without reasonable cause. The government appealed that decision to the Ninth Circuit Court of Appeals.

In its ruling on the appeal in March, the Ninth Circuit court held that, in general, border agents need to have at least reasonable cause of wrongdoing to conduct a forensic search of a laptop at a U.S. border.

However, the court also held that in Cotterman's case, the government had acted on reasonable suspicion because Cotterman had a prior conviction on child molestation charges.

"The immediate impact of the [Supreme Court] ruling is that the Ninth Circuit's rule about border officials needing reasonable suspicion to conduct a forensic examination of a computer...remains the law in the Ninth Circuit," said Hanni Fakhoury, a staff attorney with the Electronic Frontier Foundation.

Though the ruling applies only to the Ninth Circuit jurisdiction, it is still significant, Fakhoury said. The ruling affects a huge chunk of border territory in California, Arizona, Hawaii and Washington state.

"It also means that Cotterman himself will now stand trial on the charges with the evidence the government obtained from the laptops," Fakhoury said.

The issue of warrantless border searches of laptop computers, smartphones and other electronic devices, has been contentious for several years.

In recent years, DHS agents have searched thousands of electronic devices at the border, in most cases without warrants or reasonable cause. In some cases, the devices have been confiscated and the contents copied before being returned to the owner.

Groups such as the EFF argue that such searchers are unconstitutional and pose a serious privacy risk for both individuals and businesses. They note that electronic devices can contain a lot of personal information and that border agents need to have a specific reason to search them.

The searches have raised concerns that sensitive corporate data and customer information could be exposed or compromised.

The Supreme Court's decision means a "reasonable cause" standard will continue to apply to all border searches under the appellate court's jurisdiction.

However, it still falls short of the higher "probable cause" standard that the EFF and others have said should apply to border searches of electronic devices.

"Overall we're happier with a reasonable suspicion standard than no standard at all," Fakhoury said. "[But] we'd prefer probable cause."

This article, Justices let stand appeals court decision on border searches of laptops, was originally published at Computerworld.com.

Jaikumar Vijayan covers data security and privacy issues, financial services security and e-voting for Computerworld. Follow Jaikumar on Twitter at @jaivijayan or subscribe to Jaikumar's RSS feed. His e-mail address is jvijayan@computerworld.com.

See more by Jaikumar Vijayan on Computerworld.com.

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