BLOG BULLETS:

 

• A quick look and perusal of a computer at the border requires no suspicion, but an intensive forensic examination requires reasonable suspicion.
• The Ninth Circuit recognizes in its en banc Cottermanopinion that computer searches are different in kind, both because of the quantity of information a computer holds and the type of information it holds; in the court’s words, “technology matters.”
• Password protection of the entire computer contributes not at all to reasonable suspicion – or, presumably, probable cause – and password protection of individual files contributes only if it has some relationship to the suspected criminal activity.

 

NOW THE BLOG:

In the third of a series of posts on computer searches last summer (see “Getting Even Braver in a Brave New World: Computer Searches Part 3” in the August 2012 link at the right), I noted a border search computer search case in which the Ninth Circuit had granted rehearing en banc – United States v. Cotterman, 637 F.3d 1068 (9th Cir. 2011), reh’rg en banc granted, 673 F.3d 1206 (9th Cir. 2012). The panel opinion was a disappointing holding that a laptop computer being brought across the border by an ordinary traveler could be seized and subjected to an intensive forensic examination with no suspicion at all, under the border search exception. The panel opinion seemingly gave no weight to the much greater intrusiveness of a forensic computer examination and held it was just like any border search. This despite the fact that a forensic examination – as opposed to just a brief perusal of the computer’s desktop – looks at even files that the user thinks are deleted, since many of those files can still be recovered by forensic software from what’s called the unallocated space.

The en banc opinion – which was issued earlier this month and can be found in slip opinion form by clicking here or at 2013 WL 856292 or 2013 U.S. App. LEXIS 4731 – cuts back on the panel opinion somewhat, though not as much as we might like. The bottom line holding is that the border search exception doesn’tpermit intensive computer searches of the forensic examination sort with no suspicion at all. But there’s two caveats that aren’t so great. First, only reasonable suspicion is required even for a forensic examination; there’s no requirement of either probable cause or a warrant. Second, an ordinary facial search of the computer’s desktop and perhaps even readily retrievable files can still be conducted with no suspicion at all at the border. This was the specific search upheld in United States v. Arnold, 533 F.3d 1003 (9th Cir. 2008), and the en banc Cotterman opinion expressly approves the holding of Arnold on its limited facts. See Cotterman, slip op. at 14, 2013 WL 856292, at *5, 2013 U.S. App. LEXIS 4731, at *13 (describing officers in Arnold as simply “looking inside” laptop after having had traveler “boot [it] up”).

Given these caveats, Cotterman may not actually mean much in terms of Fourth Amendment protection at the border. Given the specialized personnel, effort, and time required for a forensic computer examination, it’s unlikely that border officers would conduct such searches in the absence of reasonable suspicion even if they could, as the Cotterman opinion recognizes. See Cotterman, slip op. at 27 n.14, 2013 WL 856292, at *10 n.14, 2013 U.S. App. LEXIS 4731, at *33 n.14 (noting that “as a matter of commonsense and resources, it is only when reasonable suspicion is aroused that such searches typically take place”). And non-forensic searches may still be conducted with no suspicion at all – though how extensive they may be is potentially left open. Query whether Cotterman and Arnold allow a border officer to open every single file on the computer that’s retrievable without forensic software, or whether there may be some limit even on that sort of search. Cotterman characterizesArnold as approving “a quick look and unintrusive search of laptops,”Cotterman, slip op. at 14, 2013 WL 856292, at *5, 2013 U.S. App. LEXIS 4731, at *13, and might not extend to an hours-long examination of every file in every folder that can be accessed without forensic software, see id., slip op. at 28, 2013 WL 856292, at *11, 2013 U.S. App. LEXIS 4731, at *35 (noting that travelers “do not expect . . . agents will mine every last piece of data on their devices” and that “such a thorough and detailed search of the most intimate details of one’s life is a substantial intrusion upon personal privacy and dignity”).

Where Cotterman may be more helpful is in its general recognition that computer searches – especially forensic computer searches, but even non-forensic ones if sufficiently intensive – are different. The reason the court gave for treating the computer search there differently was “the comprehensive and intrusive nature of a forensic examination,” Cotterman, slip op. at 17, 2013 WL 856292, at *6, 2013 U.S. App. LEXIS 4731, at *19, which was “essentially a computer strip search,” id., slip op. at 25, 2013 WL 856292, at *9, 2013 U.S. App. LEXIS 4731, at *31. The court noted that both the quantity and type of information stored on computers makes them different. With respect to quantity, it recognized:

The amount of private information carried by private travelers was traditionally circumscribed by the size of the traveler’s luggage or automobile. That is no longer the case. Electronic devices are capable of storing warehouses full of information. The average 400-gigabyte laptop hard drive can store over 200 million pages – the equivalent of five floors of a typical academic library. (Citations omitted.) Even a car packed full of packed suitcases with sensitive documents cannot hold a candle to the sheer, and ever-increasing, capacity of digital storage. (Footnote omitted.)

Id., slip op. at 20-21, 2013 WL 856292, at *7, 2013 U.S. App. LEXIS 4731, at *24-25. Then with respect to the type of information stored on computers, the court noted:

The nature of the contents of electronic devices differs from that of luggage as well. Laptop computers, iPads and the like are simultaneously offices and personal diaries. They contain the most intimate details of our lives: financial records, confidential business documents, medical records and private e-mails. This type of material implicates the Fourth Amendment’s specific guarantee of the people’s right to be secure in their “papers.” U.S. Const. amend. IV. The express listing of papers “reflects the Founders’ deep concern with safeguarding the privacy of thoughts and ideas – what we might call freedom of conscience – from invasion by the government.” [United States v.]Seljan, 547 F.3d [993,] 1014 [(9th Cir. 2008) (en banc)] (Kozinski, C.J., dissenting); see also New York v. P.J. Video, Inc., 475 U.S. 868, 873 (1986). These records are expected to be kept private and this expectation is “one that society is prepared to recognize as ‘reasonable.’”Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). (Footnote omitted.)

Cotterman, slip op. at 21-22, 2013 WL 856292, at *8, 2013 U.S. App. LEXIS 4731, at *25-26. And the court recognized that the privacy of information stored on computers can’t be preserved by simply “throwing away” or destroying the material. It explained:

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 to 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.

Id., slip op. at 22, 2013 WL 856292, at *8, 2013 U.S. App. LEXIS 4731, at *27-28. See also id., slip op. at 23, 2013 WL 856292, at *8, 2013 U.S. App. LEXIS 4731, at *28 (“It is as if a search of a person’s suitcase could reveal not only what the bag contained on the current trip, but everything it had ever carried.”). The court then concluded this discussion with the simple point that “technology matters” and that “reasonableness determination must account for differences in property.” Id., slip op. at 24, 2013 WL 856292, at *9, 2013 U.S. App. LEXIS 4731, at *29-30.

Also of interest and potentially more general application in computer searches is one aspect of the court’s reasonable suspicion analysis in which it discussed what, if anything, password protection suggested. The court made two points about how and whether this might contribute to reasonable suspicion (or, presumably, probable cause where that’s required). Initially, it rejected the idea that password protecting an entire device could be a relevant factor, as that sort of password protection is “a basic means of ensuring that the device cannot be accessed by another in the event it is lost or stolen.” Cotterman, slip op. at 32 n.17, 2013 WL 856292, at *13 n.17, 2013 U.S. App. LEXIS 4731, at *41 n.17. Even as to individual files which are password protected, it declined to “place much weight on this factor because it is commonplace for business travelers, casual computer users, students and others to password protect their files.” Id., slip op. at 31, 2013 WL 856292, at *12, 2013 U.S. App. LEXIS 4731, at *41. But it allowed some weight to this factor when individually password protected files are shown “to have some relationship to the suspected criminal activity.” Id., slip op. at 32, 2013 WL 856292, at *13, 2013 U.S. App. LEXIS 4731, at *41.

To sum up, Cotterman may give us more ammunition for challenges to computer searches in other contexts than in the specialized border search context. So get creative. Like the court in Cotterman thought about and made analogies to – and, perhaps equally important, distinctions from – ordinary luggage and personal, private papers in the border search context, think about analogies and distinctions in other search contexts. And as always, have fun messing with them.