Court to Rehear Electronic Device Border Search Case

Thursday, April 05, 2012

Article by Hanni Fakhoury

When it comes to the government's ability to search your electronic devices at the border, we've always maintained that the border is not an "anything goes" zone, and that the Fourth Amendment doesn't allow the government to search whatever it wants for any (or no) reason at all.

Recently, the Ninth Circuit Court of Appeals agreed to rehear a case that gave the government carte blanche to search through electronic devices at the border.

In September 2011, EFF and the National Association of Criminal Defense Lawyers filed an amicus brief (PDF) before the Ninth Circuit, asking it to rehear its decision in United States v. Cotterman (PDF), which dramatically expanded the "border search" doctrine that generally allows law enforcement to search a person coming across the international border without a warrant or any suspicion of wrong doing. 

Cotterman involved a man who attempted to cross into the United States from Mexico at the Arizona border. Customs agents kept him at the border for 8 hours without suspecting him of carrying anything illegal. They seized two laptops and a digital camera without a search warrant, and transported them 170 miles to Tuscon.

Still without a search warrant, they searched the hard drives and computers for two days, until they found child pornography on the computers and arrested Cotterman. A three judge panel of the Ninth Circuit found the warrantless search reasonable under the Fourth Amendment as a "border search," despite the fact the search took place far from the actual border. 

Our amicus brief echoed the warning of dissenting judge Betty Fletcher, who wrote that the majority's decision “gives the Government a free pass to copy, review, categorize, and even read all of that information in the hope that it will find some evidence of any crime.”

On Monday, the entire court took our (and Judge Fletcher's) warning into account and agreed to rehear the case (PDF). In reconsidering the case and the implications it has for all international travelers coming into the United States, we're hopeful the court will get it right this time, and find such a dangerous expansion of the "border search" doctrine unreasonable under the Fourth Amendment.

And while waiting for the court's decision, international travellers entering the United States should check out our guide for protecting your electronics during international travel, "Defending Privacy at the U.S. Border: A Guide for Travelers Carrying Digital Devices."

Cross-posted from Electronic Frontier Foundation

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