A new federal case out of Arizona has decided an interesting question: Can the government perform a deep forensic search of your computer without cause when you cross the border? This court said no.
Fourth Amendment law works a little differently at the nation's borders. There is no requirement to show probable cause or reasonable suspicion because a search is presumed reasonable by the fact that it occurs at the border. This is due to the need to keep the country secure against dangers entering from foreign countries. There are three exceptions to this general rule: a highly intrusive search of the person, a destructive search of property, and searches that are conducted in a particularly offensive manner. These exceptions require the government to show that it had a "reasonable suspicion" that the search will uncover evidence of illegal conduct, a lower standard than probable cause.
The Arizona case began when Mr. and Mrs. Cotterman attempted to cross back into the U.S. from Mexico. During primary inspection at the border, the Treasury Enforcement Communication System (TECS) returned a hit that Mr. Cotterman had a 1992 conviction for multiple sexual conduct involving a minor charges. The TECS hit also showed that Cotterman was suspected of involvement in child sex tourism. The Cottermans were referred to secondary inspection, where their three cameras and two computers were further inspected. The border agents also called Immigration and Customs Enforcement (ICE), which reported that Cotterman's alert on the TECS system was part of an operation targeting child sex tourism by identifying registered sex offenders in California and focusing on those who traveled frequently outside of the United States. Cotterman offered to help the agents search his computer at the border, but the agents refused because they feared that Cotterman would use the opportunity to delete or erase incriminating files
On the basis of the TECS hit and conversation with ICE, the border agents allowed the Cottermans to travel on, but held Mr. Cotterman's laptop for forensic examination. This exam, using software that copied the hard drive and searched for information previously deleted or protected by password, showed that Mr. Cotterman had several hundred photographs and videos of himself engaging in sexual conduct with minors.
The Arizona court concluded that the government had to show reasonable suspicion before conducting a deep forensic search of a computer. The court concluded that the computer exam was not an "extended border search," which would have required particularized suspicion, because the computer in question never actually cleared customs. Instead, the court decided that the government still needed to show reasonable suspicion due to the intrusive nature of the forensic exam. The court directly referenced a person's "substantial personal privacy interests" in their digital devices, comparing the information stored on such devices to the "papers" included in the Fourth Amendment language. The court pointed out that digital devices are now capable of carrying millions of pages worth of information, operating like "offices and personal diaries." The expectation that these records would remain private and that the nature of digital storage made it impractical to leave behind "papers" that you did not want the government to see led the court to state that government must have a reason to plunge so deeply into a person's life at the border. Preliminary searches, like simply opening the computer and looking at its contents in plain view are still allowed without suspicion. It is the deep forensic exams that can find information previously deleted that triggers the heightened standard. The court compared such searches to a highly intrusive search of a person and a search offensively conducted. The TECS hit and ICE operation were enough to rise to the reasonable suspicion necessary to justify the forensic exam.
This case raises two key issues that we have recently discussed in class. First, Mr. Cotterman was flagged because of a 20 year old conviction and a habit of traveling out of the country. These two facts alone were enough to place him on a list of suspected child sex tourists. After our discussions on profiling, should these two facts alone have been enough to allow harassment and a deep forensic search of his computer upon re-entry to the U.S.? No one flagging Mr. Cotterman had personal knowledge of the man, nor had he acted in a suspicious manner at the border. Second, this is court decision recognizing that computers are different in kind from non-digital storage of personal information. The large amount of personal information that most people keep on their computers clearly led the court to be wary of allowing the government unfettered access, despite the usual deference to the government when dealing with border searches. This is an important statement that privacy expectations are changing and evolving with technology. In privacy terms, computers are different.
No comments:
Post a Comment