En Banc Ninth Circuit Holds That Computer Forensic Searches Are Like “Virtual Strip Searches” And Require Reasonable Suspicion At the Border

Today the Ninth Circuit handed down its long-awaited en banc decision in United States v. Cotterman, a case on the lawfulness of searching a computer at the border. (My prior posts are here, here, here, and here.) Today the Ninth Circuit announced a special rule for computer searches: Although a “review of computer files” can occur without reasonable suspicion, the “forensic examination” of a computer at the border requires reasonable suspicion because it is “akin to reading a diary line by line looking for mention of criminal activity—plus looking at everything the writer may have erased.” Here’s the key part of the analysis:

The relevant inquiry, as always, is one of reasonableness. But that reasonableness determination must account for differences in property. Unlike searches involving a reassembled gas tank, or small hole in the bed of a pickup truck, which have minimal or no impact beyond the search itself—and little implication for an individual’s dignity and privacy interests—the exposure of confidential and personal information has permanence. It cannot be undone. Accordingly, the uniquely sensitive nature of data on electronic devices carries with it a significant expectation of privacy and thus renders an exhaustive exploratory search more intrusive than with other forms of property.

After their initial search at the border, customs agents made copies of the hard drives and performed forensic evaluations of the computers that took days to turn up contraband. It was essentially a computer strip search. An exhaustive forensic search of a copied laptop hard drive intrudes upon privacy and dignity interests to a far greater degree than a cursory search at the border. It is little comfort to assume that the government—for now—does not have the time or resources to seize and search the millions of devices that accompany the millions of travelers who cross our borders. It is the potential unfettered dragnet effect that is troublesome.

We have confidence in the ability of law enforcement to distinguish a review of computer files from a forensic examination. We do not share the alarm expressed by the concurrence and the dissent that the standard we announce will prove unmanageable or give border agents a “Sophie’s choice” between thorough searches and Bivens actions.

In dissent, Judge M. Smith responds:

While I share some of the majority’s concerns about the steady erosion of our personal privacy in this digital age, the majority’s decision to create a reasonable suspicion requirement for some property searches at the border so muddies current border search doctrine that border agents will be left to divine on an ad hoc basis whether a property search is sufficiently “comprehensive and intrusive” to require reasonable suspicion, or sufficiently “unintrusive” to come within the traditional border search exception. Requiring border patrol agents to determine that reasonable suspicion exists prior to performing a basic forensic examination of a laptop or other electronic devices discourages such searches, leaving our borders open to electronicallysavvyterrorists and criminals who may hereafter carry their equipment and data across our borders with little fear of detection. In fact, the majority opinion makes such a legal bouillabaisse out of the previously unambiguous border search doctrine, that I sincerely hope the Supreme Court will grant certiorari, and reverse the holding in this case regarding the level of suspicion necessary to search electronic devices at the border, for the sake of our national security, and the consistency of
our national border search law.

And Judge Callahan adds:

Regrettably the majority, dispensing with these wellsettled, sensible, and binding principles [from Supreme Court caselaw], lifts our anchor and charts a course for muddy waters. Now border agents, instead of knowing that they may search anyand all property that crosses the border for illegal articles, must ponder whether their searches are sufficiently “comprehensive and intrusive,” to require reasonable suspicion, and whether they have such suspicion. In most cases the answer is going to be as clear as, well, mud. We’re due for another course correction.

Fascinating.

And there’s another interesting twist, at least if I have read the record correctly (and I hope readers will correct me if I’m wrong). Long-time readers may recall the long-running friction between the Ninth Circuit and DOJ over how to litigate border search exception cases. DOJ has generally refused to argue that there is reasonable suspicion in order to keep open Supreme Court review if/when the Ninth Circuit takes a narrow view of the exception. Specifically, DOJ has wanted to avoid the situation in which the Ninth Circuit establishes a reasonable suspicion standard, finds reasonable suspicion, and thus prevents DOJ from being able to file a cert petition to reverse the Ninth Circuit’s conclusion that reasonable suspicion is required. As I noted in this post in 2011, DOJ declined to argue that there was reasonable suspicion in Cotterman, presumably so it could seek Supreme Court review if the Ninth Circuit ruled for the defense.

In the en banc decision today, however, the Ninth Circuit goes on to determine that there is reasonable suspicion and that DOJ therefore wins the case. That is, after holding that reasonable suspicion is required, the en banc court goes on to say that reasonable suspicion existed to search Cotterman’s computer and thus that DOJ wins and the district court has to deny the suppression motion. Ordinarily, then, this would mean that DOJ cannot seek further review: After all, it won the case. I wonder, though: Does the principle of Camreta v. Greene allow DOJ to obtain review of Cotterman anyway to seek a review of the underlying question of whether reasonable suspicion is required?

Anyway, I’m finishing up an article to ship to the law reviews later today, so I doubt I’ll be able to blog more on Cotterman at least for the next few hours. But it’s a fascinating case, and I’ll plan to blog more on it later.