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U.S. court says feds need reasonable suspicion to search laptops at borders

Jaikumar Vijayan | March 13, 2013
Less than six week after the Department of Homeland Security issued a civil rights impact assessment saying that the government needed no warrant or cause to search electronic devices at U.S. borders, a federal appellate court has ruled otherwise.

At the same time, it would have been better if the court had insisted on a probable cause standard for searches, rather than a reasonable-suspicion standard that can be interpreted in many ways, Fakhoury said. "Still, the way I see this is that it's a net gain," he said.

Though the ruling applies only to the Ninth Circuit jurisdiction, it is still significant, Fakhoury pointed out. The ruling affects a huge chunk of border territory in California, Arizona, Hawaii, and Washington.

The Ninth Circuit's ruling involves Howard Cotterman, who was charged with producing, shipping and transporting child pornography. Much of the evidence against Cotterman was gathered from his laptop computer via a warrantless search that began at a U.S. border in Arizona and was conducted later at a forensics facility about 170 miles away from the border.

Cotterman argued that the evidence be suppressed because it was gathered in violation of his Fourth Amendment protections against unreasonable search and seizure. He also maintained that the search of his computer amounted to an extended border search because it was conducted 170 miles away from the border.

A U.S. District Court that heard the case ordered the evidence suppressed. The government appealed the ruling, arguing they had conducted the search only because they already had information about Cotterman being convicted on a prior child molestation charge.

Federal prosecutors noted that Cotterman's frequent trips to Mexico, and the fact that several of the files on the computer were encrypted or password protected were reasons enough to conduct a more thorough search.

About two years ago, the Ninth Circuit rejected Cotterman's extended border search argument and held that the search of his computer was valid.

Last week, the Ninth Circuit again rejected his motion to suppress the evidence. Generally speaking, "legitimate concerns about child pornography do not justify unfettered crime-fighting searches or an unregulated assault on citizens' private," the court said.

But in Cotterman's case, the government did indeed have enough reasonable suspicion to conduct the search, the court said.


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