Wednesday, March 13, 2013



Note: Also still to be answered is the question how many firearms or
how much ammunition is "permissible" at or near the border?

Court limits border searches of electronic devices
Source: United States News
Originally published: Mar 8, 2013 - 4:30 pm

PHOENIX (AP) - A federal appeals court ruled Friday that Border
Patrol agents must have reasonable suspicion of criminal activity
before conducting comprehensive searches of laptops or other digital
devices in what civil liberties activists are calling a significant
victory for privacy rights.

The decision by the 9th U.S. Circuit Court of Appeals creates for the
first time a broad standard to ensure Border Patrol agents aren't
able to review a traveler's most private information without
sufficient cause.

"A person's digital life ought not be hijacked simply by crossing a
border," Judge M. Margaret McKeown wrote for the appeals court majority.

The ruling only applies to Border Patrol agents operating within the
9th Circuit, which includes the U.S.-Mexico border along Arizona and

The court did not define what constitutes a comprehensive search, and
it's likely Border Patrol agents will still be allowed to conduct
superficial reviews of computers, thumb drives, compact disks,
cellphones, cameras and other electronic devices during border stops.

Legal observers expect both sides will appeal the decision to the
U.S. Supreme Court. The federal government insists federal agents
don't need reasonable suspicion to search electronic devices for
hidden and deleted files along the border.

The case centered on Howard Cotterman, a U.S. citizen whose laptop
was seized at the Arizona-Mexico border in 2007. After a months-long
review, federal investigators found hundreds of hidden child
pornography files on Cotterman's computer, including images of him
molesting a young girl, the court decision states.

A grand jury had indicted Cotterman for offenses related to child
pornography, but a district court found the search unconstitutional
and suppressed evidence.

However, the appeals court ruled that federal agents had reasonable
suspicion based on a 15-year-old child molestation conviction against
Cotterman and because Mexico is known as a sex tourism destination.

Bill Kirchner, a Tucson lawyer representing Cotterman, declined to
discuss the specifics of his client's case other than saying his
criminal history was not sufficient grounds for reasonable suspicion.

In its ruling, the appeals court noted that the intrusive nature of
forensic searches of electronic devices triggers the reasonable
suspicion requirement.

Under federal policy, investigators can spend months reviewing
electronic devices. The forensic reviews often can uncover password-
protected and deleted files.

"It's definitely a move in the right direction in terms of
recognizing privacy rights in the digital age," said Sharon Bradford
Franklin, a lawyer with the Constitution Project, which had filed an
amicus brief in the case supporting new privacy standards.

The U.S. Attorney's Office in Arizona declined to comment on the case.

In a dissenting opinion, Judge Consuelo Callahan said the court's
decision flouted "more than a century of Supreme Court precedent, is
unworkable and unnecessary and will severely hamstring the
government's ability to protect our borders."

But Hanni Fakhoury, a staff attorney with the Electronic Frontier
Foundation, said reasonable suspicion is a far cry from probable
cause, which would require Border Patrol agents to obtain a warrant
before fishing for hidden digital files.

The foundation had filed an amicus brief urging the court to rule
that forensic searches of electronic devices at the border should
never be performed without reasonable suspicion.

"It's still a very lax standard," Fakhoury said. "It still allows law
enforcement to do their job and keep us safe."

Kirchner said it was likely he would appeal the decision. He said
privacy advocates should be alarmed that the ruling only applies to
exhaustive searches, not superficial content reviews.

"They can take your iPhone, they can take your Kindle, they can take
anything they want and keep it and search it for a non-forensic
search," Kirchner said.
Cristina Silva can be reached at

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