Privacy & Information Security Law Blog

On March 8, 2013, a U.S. federal appeals court issued a decision in the case United States v. Cotterman, holding that the federal government must have “reasonable suspicion” of criminal activity to conduct a forensic search of laptops and similar devices in the possession of individuals attempting to cross the border. The case arose after Howard Cotterman attempted to enter the United States by car at a checkpoint on the Mexican border. When border agents determined that he had a criminal record related to sexual misconduct, they seized his laptop and attempted to search it. They initially discovered some password-protected files but no proof of illegal activity and allowed him to enter the country but did not return his laptop. The agents then subjected the computer to a forensic analysis and discovered it contained child pornography in portions of the hard drive that had been deleted or protected with passwords. The federal district court ordered suppression of this evidence in the criminal case against Cotterman on the ground that the agents’ forensic analysis of his computer violated the Fourth Amendment’s prohibition on warrantless searches.

The Ninth Circuit reviewed the suppression order to determine whether the applicable standard for the search was no suspicion, reasonable suspicion or probable cause. The court explained that, given “the long-standing right of the sovereign to protect itself by stopping and examining persons and property crossing into this country,” border searches form “a narrow exception to the Fourth Amendment prohibition against warrantless searches without probable cause.” The court explained that “the touchstone of the Fourth Amendment analysis remains reasonableness” and that the “reasonableness of a search or seizure depends on the totality of the circumstances, including the scope and duration of the deprivation.”

The court held that “the legitimacy of the initial search of Cotterman’s electronic devices at the border is not in doubt,” finding this initial activity similar to conduct in other cases in which it had approved “a suspicionless cursory scan of a package in international transit” and “a quick look and unintrusive search of laptops.” In Cotterman’s case, however, the court found that the subsequent “comprehensive and intrusive” forensic search of the laptop was the equivalent of a “computer strip search,” and that this type of search requires “reasonable suspicion” (i.e., a “particularized and objective basis for suspecting the person stopped of criminal activity”). The court found that the border agents had met this standard in this particular case, but the ruling raises the bar for similar searches in other cases.

View the decision on the court’s website.