- The Washington Times - Friday, March 8, 2013

The Border Patrol cannot confiscate or download every laptop or electronic device brought into the U.S., a federal appeals court said, ruling that people have an expectation their data are private and that the government must have “reasonable suspicion” before it starts to snoop.

In a broad ruling Friday, the court also said merely putting password protection on information is not enough to trigger the government’s “reasonable suspicion” to conduct a more intrusive search — but can be taken into account along with other factors.

The 9th U.S. Circuit Court of Appeals judges said it was a “watershed” case that gets at what kinds of limits the government must observe when it comes to technology and privacy.

“Electronic devices often retain sensitive and confidential information far beyond the perceived point of erasure, notably in the form of browsing histories and records of deleted files,” Judge M. Margaret McKeown wrote in the majority opinion. “This quality makes it impractical, if not impossible, for individuals to make meaningful decisions regarding what digital content to expose to the scrutiny that accompanies international travel. A person’s digital life ought not be hijacked simply by crossing a border.”

The ruling says that Americans who carry laptops or other electronic devices when they go out in public have some expectation that that information is not open to a search if they made an effort to protect it.

Privacy advocates cheered the decision, saying that the government had previously believed it had the right to copy all electronic data of anyone crossing into the U.S.

“But in today’s watershed ruling, the court drew a line in the sand and recognized that the vast amount of personal information and sensitive data on laptops, cellphones, and other electronic devices is worthy of Fourth Amendment protection,” said Michael Price, a lawyer for the Brennan Center for Justice.

The ruling, by the entire 9th Circuit, overturns a previous decision by a three-judge panel of the court that had ruled the government didn’t need a reasonable suspicion to do a search at the border.

In most cases, the government needs probable cause to conduct a search. Reasonable suspicion is a lower standard. But the Obama administration had argued it didn’t need any reason to search.

The court rejected that, ruling that password-protected files are exactly what the Constitution’s Framers had in mind when they wrote the Fourth Amendment protecting Americans’ “papers” from unreasonable searches.

In the case before the court, officers in Lukeville, Ariz., stopped Howard Cotterman as he came across the border and checked his name through records, discovering he had prior convictions for sex offenses, including child molestation. The officers found laptops and cameras in his vehicle and looked for child pornography, but they were blocked by his password protection.

They let him go but kept his laptops and one camera, took them to a forensics office and copied all the information off the laptops. They eventually got into the password-protected files and found hundreds of images of child pornography, including Cotterman molesting a child.

Cotterman had put some of the files behind his password protection and had erased others, but the government analysts were able to reconstruct those files.

That, the court said, went beyond the bounds of a reasonable search.

“It is little comfort to assume that the government — for now — does not have the time or resources to seize and search the millions of devices that accompany the millions of travelers who cross our borders. It is the potential unfettered dragnet effect that is troublesome,” Judge McKeown wrote.

Writing in dissent, Judge Milan Smith said the ruling creates a morass for border inspections and amounts to “leaving 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.”

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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