BLOG BULLETS:

 

• There’s a government “watch list” for citizens crossing the border whose property (including laptop computers) they want to search.
• The few cases that exist tend to suggest this pretextual targeting probably doesn’t by itself prevent a suspicionless, warrantless search under the border search exception.
• But there may be a claim that the exception can’t be relied upon if the client has been targeted for some improper reason such as ethnicity or the exercise of First Amendment or other constitutional rights.

 

NOW THE BLOG:

Since I’m back on the subject of computer searches anyway, I thought I’d share a New York Times article – on the subject of computer searches at the border – that came to me through one of the appellate panels I’m on and also share the little bit of follow-up research and thinking it led me to engage in. The article, entitled “The Border Is a Back Door for U.S. Device Searches,” appeared in the September 9, 2013 on-line edition of the Times and can (at least for now) be found at http://www.nytimes.com/2013/09/10/business/the-border-is-a-back-door-for-us-device-searches.html?emc=eta1&_r=0, also directly linked here. The article is based on documents obtained in a lawsuit by one David House, a fundraiser for an organization called the Bradley Manning Support Network, which was created to raise funds for the legal defense of the army private formerly known as Bradley Manning (and known as Chelsea Manning). You may recall Manning was recently sentenced to 35 years in prison for leaking classified material related to some of our country’s debatable activities in Iraq and Afghanistan.

The government had apparently placed the fundraiser, Mr. House, on a border watch list and when Mr. House returned from a trip to Mexico, the government took advantage of the “border search” exception to seize and conduct an intensive forensic search of his laptop computer. Because the border search exception applied, it claimed it could do that without the probable cause or warrant that would have been required without the border search exception. The facts are briefly described in the Times article and described in more detail in a district court opinion denying a motion for summary judgment in the case, which is available on Westlaw, see House v. Napolitano, No. 11-10852-DJC, 2012 WL 1038816 (D. Mass. March 28, 2012).

What the documents reveal is what the Times article describes as “a largely secretive process that enables the government to create a travel alert for a person, who may not be a suspect in an investigation, then detain that individual at a border crossing and confiscate or copy any electronic devices that person is carrying.” At least for those citizens who travel internationally and use laptop computers, the government apparently just lays back when it doesn’t have probable cause and/or doesn’t want to get a search warrant and places the person on a watch list so it can use the border search exception when the citizen engages in his right to travel.

At least here in the Ninth Circuit, there is the case of United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013) (en banc), which the Times article noted and which I discussed in a couple of my past posts (see “Getting Even Braver in a Brave New World: Computer Searches Part 3,” in the August 2012 link at the right, and “Back to the Brave New World of Computer Searches: A Good (or at Least Improved) New Ninth Circuit Decision,” in the March 2013 link at the right). Cottermanprotects us a little by requiring reasonable suspicion for a forensic examination of the computer, but protects us a lot less than the Fourth Amendment probable cause and warrant requirements that apply to non-border computer searches. And it seems especially insufficient if the government’s just watching for its targets crossing the border and then using the border search exception as the subterfuge which the Times article suggests.

Hoping against hope, I turned to the law books (okay, I guess that now it’s legal research databases, not books, that I have to turn to) to see if there was any case law on this sort of outrage. On the negative, cloud side, the case law I found that was most closely on point tended to reject the idea that it was improper for the government to use the border search exception as a subterfuge for criminal investigatory purposes. See, e.g., United States v. Irving, 452 F.3d 110, 123 (2d Cir. 2006); United States v. Tsai, 282 F.3d 690, 693 (9th Cir. 2002); United States v. Wallace, No. 1:12-CR-00230-TWT-LTW, 2013 WL 1707904, at *5 (N.D. Ga. March 21, 2013). But on the silver lining side, (1) there was less case law than I thought there might be, and (2) the cases dealt with more case-specific claims of ad hoc subterfuge, not the more generalized watch list practice and strategy suggested by the Times article and the district court opinion in the case.

I then started thinking about arguments we might make when a border search was pretextual and that pretext was aggravated by being tied to a common government practice or strategy. The first case which comes to mind when one hears “pretext” in the context of the Fourth Amendment is Whren v. United States, 517 U.S. 806 (1996), in which the Supreme Court held that it doesn’t matter if a traffic stop for a traffic violation was a complete pretext for the cop’s subjective investigatory motive. But there are two important caveats in Whren. First, as the Supreme Court explained in the later case of City of Indianapolis v. Edmond, 531 U.S. 32 (2000):

We observed [in Whren] that our prior cases “foreclose any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved.” Id. at 813, 116 S. Ct. 1769. In so holding, we expressly distinguished cases where we had addressed the validity of searches conducted in the absence of probable cause. See id. at 811-812, 116 S. Ct. 1769 (distinguishing Florida v. Wells, 495 U.S. 1, 4, 110 S. Ct. 1632, 109 L. Ed. 2d 1 (1990) (stating that “an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence), Colorado v. Bertine, 479 U.S. 367, 372, 107 S. Ct. 738, 93 L. Ed. 2d 739 (1987) (suggesting that the absence of bad faith and the lack of a purely investigative purpose were relevant to the validity of an inventory search), and [New York v.] Burger, 482 U.S. [691,] 716-717, n. 27, 107 S. Ct. 2636 [(1987)] (observing that a valid administrative inspection conducted with neither a warrant nor probable cause did not appear to be a pretext for gathering evidence of violations of the penal laws)).

Whren, 531 U.S. at 405. A border search is of course another type of search conducted in the absence of probable cause, soWhren may be limited in its application to border searches as well.

Second, Whren recognized that officers’ motivations for making a stop – or, presumably, conducting a search – might violate other constitutional provisions. See id., 517 U.S. at 813. The specific example it offered was “selective enforcement of the law based on considerations such as race,” which would trigger the protections of the Equal Protection Clause. Id. But this is not the only possibility, as illustrated by Mr. House’s lawsuit. The district court opinion in his case that I cite above found he had stated a claim that the border search of his computer was unconstitutional because it had been based on exercise of his First Amendment right to freedom of association, in the form of his membership in the Bradley Manning Support Network. See House v. Napolitano, 2012 WL 1038816, at *10-13. So we can think about whether our clients are being targeted not just because of their race but also because of the groups of which they are members, the statements they have made or joined in making, and/or the books and/or other materials they have read or written.

As an aside, there’s also one little other factoid of interest in theNew York Times article that relates to the subject of last week’s post on protocols. The article suggested there was a protocol used for the search, by describing the search as “using 183 keywords that turned up more than 26,000 files.” So we have another example of the use of a protocol in conducting a search. A backup challenge to the search if the court had appliedCotterman (which was decided after the district court’s opinion) but somehow found there was reasonable suspicion to look for some evidence on Mr. House’s computer would have been an inquiry into whether these 183 keywords swept too broadly and stepped outside the universe of files for which there was reasonable suspicion.

Then one last thought: Guess we might want to think twice about going on foreign trips with our laptops, eh? Isn’t it sad what our own government makes us worry about? Even when they’re shutting everything else in the government down?