Back in early March, the United States Court of Appeals for the Ninth Circuit ruled that Customs & Border Protection agents (“CBP”) are now prohibited from conducting comprehensive searches of electronic devices away from the point of entry unless the government has reasonable suspicion of criminal activity.
Border searches are historically permitted without a warrant because of the government’s powerful interest in protecting America from “unwanted persons or effects,” and by recognizing that international travelers have a lower expectation of privacy when crossing into the U.S. While there are certain regulations CBP officers must follow (like having reasonable suspicion of criminal activity to conduct an invasive body cavity search or to detain a person for 24+ hours), all personal property crossing into the U.S. is subject to a warrantless search, including every inch of your vehicle and anything within it.
The case at hand arose when agents at the U.S.-Mexico border seized a man’s laptop after their database showed he was a convicted child molester and suspected for engaging in child sex tourism. CBP looked for child pornography on his laptop and cameras, but they were blocked by password protection. They let the man enter the U.S., but kept his electronics and sent them to an off-site forensics office. They eventually accessed the password-protected and deleted files and found hundreds of images of child porn, including photos of the man molesting a child.
The Ninth Circuit Court held that while the initial search and attempt to open the laptop was valid regardless of any level of suspicion, the subsequent off-site forensic search away from the port of entry was only justified by a reasonable suspicion of criminal activity, which the government lacked here. The court reasoned that electronic devices justified a higher expectation of privacy because of the magnitude of personal information they contain and that “a person’s digital life ought not to be hijacked simply by crossing a border.” A dissenting judge, however, wrote that the ruling leaves “our borders open to electronically savvy terrorists and criminals who may hereafter carry their equipment and data across our borders with little fear of detection.”
This case, U.S. v. Howard Wesley Cotterman, illustrates how emerging technology is changing the laws surrounding privacy. It will be interesting to see how the tension between border security and privacy expectations play out in the future.
If you have border crossing or other U.S. immigration concerns, schedule a consultation to speak with one of our border attorneys.