Border electronics search case to be re-heard

A U.S. appeals court ordered a re-hearing in a case that involves how far U.S. agents can go in searching electronic devices in border areas.

The U.S. Court of Appeals for the Ninth Circuit said on March 20 that the 2010 U.S. vs Howard Lesley Cotterman case should be re-heard. Privacy groups have called the initial court ruling an “expansive” leap in how federal agents can search people coming across the border.

The facts of the case are sordid, but it is shot through with Fourth Amendment issues. In 2007, Cotterman tried to cross from Mexico into Arizona, but was detained by Customs and Border Protection after a CBP electronic database check of his passport discovered a Treasury Enforcement Communication System (“TECS”) notice that he had a 1992 conviction for two counts of use of a minor in sexual conduct, two counts of lewd and lascivious conduct upon a child, and three counts of child molestation. The notice also warned law enforcement to be on the “lookout” for child pornography on Cotterman.

Agents held him at the border for eight hours and seized his two laptop computers and a digital camera without a search warrant, then transported him 170 miles to Tucson. They searched Cotterman’s computer hard drives for two days without a warrant, said the Electronic Frontier Foundation (EFF). They eventually discovered child pornography on the computers and arrested him.

In 2010, a three judge panel of the Ninth Circuit found the warrantless search reasonable under the Fourth Amendment as a "border search," despite the fact the search took place far from the actual border.

However, privacy groups, including EFF, said the ruling “dramatically expanded” the border search doctrine that generally allows law enforcement to search a person coming across the border without a warrant or any suspicion of wrongdoing. In a friend of the court filing, the EFF echoed the warning of a dissenting circuit court judge, who said that the original decision “gives the Government a free pass to copy, review, categorize, and even read all of that information in the hope that it will find some evidence of any crime.”

“When it comes to the government's ability to search your electronic devices at the border, we've always maintained that the border is not an ‘anything goes’ zone, and that the Fourth Amendment doesn't allow the government to search whatever it wants for any (or no) reason at all,” said EFF on March 20 after the appeals court order. The March 20 Ninth Circuit Court of Appeals, said EFF, “agreed to rehear a case that gave the government carte blanche to search through electronic devices at the border.”