by Gene Howington, Guest Blogger

Recently we discussed the DHS’s self-approval of their draconian and arguably unconstitutional and unquestionably outrageous policy on searching computers within 100 miles of the border (Your Rights Under Attack: What A Difference 100 Miles Makes). This week, a ruling from the 9th Circuit Court of Appeals not only showed the DHS was legally wrong in their self-approval of a policy that runs afoul of the 4th Amendment, but also illustrated the true value of the checks and balances created by the Separation of Powers Doctrine that so many in the Executive seem eager to trample these days. The case at bar was U.S. v. Cotterman.  In a breath of good news for civil libertarians, the 9th Circuit Court of Appeals en banc ruling held that the 4th Amendment does apply at the border despite DHS contention to the contrary.

Let’s look at this case and ruling. Bear with the long restatement of facts as they are relevant to the holding.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

fn. 2 – The facts related here are drawn from the record of the evidentiary hearing held before the magistrate judge.

[Ed. Note: Other footnotes omitted. See link to original below for full cite.]

Howard Cotterman and his wife were driving home to the United States from a vacation in Mexico on Friday morning, April 6, 2007, when they reached the Lukeville, Arizona, Port of Entry. During primary inspection by a border agent, the Treasury Enforcement Communication System (‘TECS’) returned a hit for Cotterman. The TECS hit indicated that Cotterman was a sex offender–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–and that he was potentially involved in child sex tourism. Because of the hit, Cotterman and his wife were referred to secondary inspection, where they were instructed to exit their vehicle and leave all their belongings in the car. The border agents called the contact person listed in the TECS entry and, following that conversation, believed the hit to reflect Cotterman’s involvement “in some type of child pornography.” The agents searched the vehicle and retrieved two laptop computers and three digital cameras. Officer Antonio Alvarado inspected the electronic devices and found what appeared to be family and other personal photos, along with several password-protected files.

Border agents contacted Group Supervisor Craig Brisbine at the Immigration and Customs Enforcement (‘ICE’) office in Sells, Arizona, and informed him about Cotterman’s entry and the fact that he was a sex offender potentially involved in child sex tourism. The Sells Duty Agent, Mina Riley, also spoke with Officer Alvarado and then contacted the ICE Pacific Field Intelligence Unit, the office listed on the TECS hit, to get more information. That unit informed Riley that the alert was part of Operation Angel Watch, which was aimed at combating child sex tourism by identifying registered sex offenders in California, particularly those who travel frequently outside the United States. She was advised to review any media equipment, such as computers, cameras, or other electronic devices, for potential evidence of child pornography. Riley then spoke again to Alvarado, who told her that he had been able to review some of the photographs on the Cottermans’ computers but had encountered password protected files that he was unable to access.

Agents Brisbine and Riley departed Sells for Lukeville at about 1:30 p.m. and decided en route to detain the Cottermans’ laptops for forensic examination. Upon their arrival, they gave Cotterman and his wife Miranda warnings and interviewed them separately. The interviews revealed nothing incriminating. During the interview, Cotterman offered to help the agents access his computer. The agents declined the offer out of concern that Cotterman might be able to delete files surreptitiously or that the laptop might be “booby trapped.”

The agents allowed the Cottermans to leave the border crossing around 6 p.m., but retained the Cottermans’ laptops and a digital camera. Agent Brisbine drove almost 170 miles from Lukeville to the ICE office in Tucson, Arizona, where he delivered both laptops and one of the three digital cameras to ICE Senior Special Agent & Computer Forensic Examiner John Owen. Agent Owen began his examination on Saturday, the following day. He used a forensic program to copy the hard drives of the electronic devices. He determined that the digital camera did not contain any contraband and released the camera that day to the Cottermans, who had traveled to Tucson from Lukeville and planned to stay there a few days. Agent Owen then used forensic software that often must run for several hours to examine copies of the laptop hard drives. He began his personal examination of the laptops on Sunday.That evening, Agent Owen found seventy-five images of child pornography within the unallocated space of Cotterman’s laptop.

Agent Owen contacted the Cottermans on Sunday evening and told them he would need Howard Cotterman’s assistance to access password-protected files he found on Cotterman’s laptop. Cotterman agreed to provide the assistance the following day, but never showed up. When Agent Brisbine called again to request Cotterman’s help in accessing the password-protected files, Cotterman responded that the computer had multiple users and that he would need to check with individuals at the company from which he had retired in order to get the passwords. The agents had no further contact with Cotterman, who boarded a flight to Mexico from Tucson the next day, April 9, and then flew onward to Sydney, Australia. On April 11, Agent Owen finally managed to open twenty-three password-protected files on Cotterman’s laptop. The files revealed approximately 378 images of child pornography. The vast majority of the images were of the same girl, approximately 7-10 years of age, taken over a two to three-year period. In many of the images, Cotterman was sexually molesting the child. Over the next few months, Agent Owen discovered hundreds more pornographic images, stories, and videos depicting children.

A grand jury indicted Cotterman for a host of offenses related to child pornography. Cotterman moved to suppress the evidence gathered from his laptop and the fruits of that evidence. The magistrate judge filed a Report and Recommendation finding that the forensic examination was an ‘extended border search’ that required reasonable suspicion. He found that the TECS hit and the existence of password-protected files on Cotterman’s laptop were suspicious, but concluded that those facts did not suffice to give rise to reasonable suspicion of criminal activity. The district judge adopted the Report and Recommendation and granted Cotterman’s motion to suppress.

In its interlocutory appeal of that order, the government characterized the issue as follows: ‘Whether the authority to search a laptop computer without reasonable suspicion at a border point of entry permits law enforcement to take it to another location to be forensically examined, when it has remained in the continuous custody of the government.’ A divided panel of this court answered that question in the affirmative and reversed. United States v. Cotterman, 637 F.3d 1068 (9th Cir. 2011). The panel concluded that reasonable suspicion was not required for the search and that ‘[t]he district court erred in suppressing the evidence lawfully obtained under border search authority.’ Id. at 1084. In dissent, Judge Betty B. Fletcher wrote that ‘officers must have some level of particularized suspicion in order to conduct a seizure and search like the one at issue here.’ Id. (B. Fletcher, J., dissenting). By a vote of a majority of nonrecused active judges, rehearing en banc was ordered. 673 F.3d 1206 (9th Cir. 2012). Following en banc oral argument, we requested supplemental briefing on the issue of whether reasonable suspicion existed at the time of the search.”

U.S. v. Cotterman, No. 09-10139, pp. 7-11.

All of the facts here hinge on reasonable suspicion as a higher standard required to search. When the government went to argue the case against the motion of suppress, they based their argument on the premise that “the forensic examination was part of a routine border search not requiring heightened suspicion and, alternatively, that reasonable suspicion justified the search.”  Id., p. 12. The government asserted to the district court that “the facts of this case clearly establish that there was reasonable suspicion.” Id. The district court disagreed and found against the prosecution. Oddly enough, after having failed to obtain a favorable ruling on that ground, the government did not challenge it directly on appeal but instead sought a broad ruling that no suspicion of any kind was required. A pretty gutsy contention but in line with the hubris shown by the DHS in rubber-stamping their own policies as legal as if they were the judiciary instead of part of the executive.  Cotterman in his answering brief argued that the government had waived the issue contending that the government “abandoned and conceded the issue of reasonable suspicion” and consequently that the Court of Appeals may not address that issue.

The Court of Appeals disagreed.

They chose to “review de novo the ultimate question of whether a warrantless search was reasonable under the Fourth Amendment.”  Id., (cite omitted). Stating that their “review necessarily encompasses a determination as to the applicable standard: no suspicion, reasonable suspicion or probable cause. That the government may hope for the lowest standard does not alter our de novo review, particularly when the issue was fully briefed and argued below. Further, we may consider an issue that has not been adequately raised on appeal if such a failure will not prejudice the opposing party. Where, as here, we ‘called for and received supplemental briefs by both parties,’ the government’s failure to address the issue does not prejudice Cotterman.” Id., pp. 12-13 (cites omitted).

The court goes on to define the traditional scope of border searches under the light of precedent. They note that although border searches are rooted in “‘the long-standing right of the sovereign to protect itself by stopping and examining persons and property crossing into this country.’ Thus, border searches form ‘a narrow exception to the Fourth Amendment prohibition against warrantless searches without probable cause.’ Because ‘[t]he Government’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border’, border searches are generally deemed ‘reasonable simply by virtue of the fact that they occur at the border.’  This does not mean, however, that at the border ‘anything goes.’ Even at the border, individual privacy rights are not abandoned but ‘[b]alanced against the sovereign’s interests.’  That balance ‘is qualitatively different . . . than in the interior’ and is ‘struck much more favorably to the Government.’ Nonetheless, the touchstone of the Fourth Amendment analysis remains reasonableness. The reasonableness of a search or seizure depends on the totality of the circumstances, including the scope and duration of the deprivation.” Id., p. 13 (cites omitted) [emphasis added].  Applying these principles, the court found that Officer Alvardo’s initial cursory inspection was reasonable and the search would have remained reasonable if it had ended there.

The problem arises when “the search here transformed into something far different. The difficult question we confront is the reasonableness, without a warrant, of the forensic examination that comprehensively analyzed the hard drive of the computer.” Id. p. 14.

In other words, given the totality of the circumstances, was the lower court wrong to grant Cotterman’s motion to suppress based on lack of reasonable suspicion in the search given that reasonable suspicion is indeed required? The 9th Circuit chose to overrule the district court and allow the evidence as part of a reasonable search. There was no problem with Officer Alvardo’s initial cursory inspection. The later forensic search was deemed based upon reasonable suspicion because of the circumstance of the TECS hit on Cotterman’s previous convictions.

Of particular interest is the court’s finding that being secure in your electronic devices is analogous to being secure in your papers under the 4th Amendment.

The amount of private information carried by international travelers was traditionally circumscribed by the size of the traveler’s luggage or automobile. That is no longer the case. Electronic devices are capable of storing warehouses full of information. The average 400-gigabyte laptop hard drive can store over 200 million pages—the equivalent of five floors of a typical academic library…. Even a car full of packed suitcases with sensitive documents cannot hold a candle to the sheer, and ever-increasing, capacity of digital storage.

The nature of the contents of electronic devices differs from that of luggage as well. Laptop computers, iPads and the like are simultaneously offices and personal diaries. They contain the most intimate details of our lives: financial records, confidential business documents, medical records and private emails. This type of material implicates the Fourth Amendment’s specific guarantee of the people’s right to be secure in their “papers.” The express listing of papers ‘reflects the Founders’ deep concern with safeguarding the privacy of thoughts and ideas–what we might call freedom of conscience–from invasion by the government.’ These records are expected to be kept  private and this expectation is ‘one that society is prepared to recognize as “reasonable.”‘

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. 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. When packing traditional luggage, one is accustomed to deciding what papers to take and what to leave behind. When carrying a laptop, tablet or other device, however, removing files unnecessary to an impending trip is an impractical solution given the volume and often intermingled nature of the files. It is also a time-consuming task that may not even effectively erase the files.”

Id., pp. 21-22, (cites and footnotes omitted).

Another important holding in this case revolves around password-protected files. The government argued that the mere existence of password-protected files merited reasonable suspicion.

To these factors, the government adds another–the existence of password-protected files on Cotterman’s computer. We are reluctant to place much weight on this factor because it is commonplace for business travelers, casual computer users, students and others to password protect their files. Law enforcement ‘cannot rely solely on factors that would apply to many law-abiding citizens’ and password protection is ubiquitous. National standards require that users of mobile electronic devices password protect their files. See generally United States Department of Commerce, Computer Security Division, National Institute of Standards and Technology, Computer Security (2007) (NIST Special Publication 800-111). Computer users are routinely advised–and in some cases, required by employers–to protect their files when traveling overseas. See, e.g., Michael Price, National Security Watch, 34-MAR Champion 51, 52 (March 2010) (‘[T]here is one relatively simple thing attorneys can do [when crossing the border] to protect their privacy and the rights of their clients: password-protect the computer login and any sensitive files or folders.’). Although password protection of files, in isolation, will not give rise to reasonable suspicion, where, as here, there are other indicia of criminal activity, password protection of files may be considered in the totality of the circumstances. (fn. 17) To contribute to reasonable suspicion, encryption or password protection of files must have some relationship to the suspected criminal activity. Here, making illegal files difficult to access makes perfect sense for a suspected holder of child pornography. When combined with the other circumstances, the fact that Officer Alvarado encountered at least one password protected file on Cotterman’s computer contributed to the basis for reasonable suspicion to conduct a forensic examination. The existence of the password-protected files is also relevant to assessing the reasonableness of the scope and duration of the search of Cotterman’s computer. The search was necessarily protracted because of the password protection that Cotterman employed. After Cotterman failed to provide agents with the passwords to the protected files and fled the country, it took Agent Owen days to override the computer security and open the image files of child pornography. Although we must take into account factors weighing both in favor and against reasonable suspicion, Cotterman’s innocent explanation does not tip the balance. See Tiong, 224 F.3d at 1140 (recognizing that ‘innocent possibilities . . . do not undermine reasonable suspicion’).

Fn. 17 – We do not suggest that password protecting an entire device–as opposed to files within a device– can be a factor supporting a reasonable suspicion determination. Using a password on a device is a basic means of ensuring that the device cannot be accessed by another in the event it is lost or stolen’.”

Id., pp. 31-32 (cites and some footnotes omitted).

So a border search of your electronics is protected by the 4th Amendment and simply having password protection does not create the presumption of reasonable suspicion absent other circumstances considered in their totality.  The wisdom of the checks and balances created by the Separation of Powers Doctrine made manifest by the courts reigning in the abuses of the executive while maintaining legal justice against the vile child pornographer Cotterman. Although this is good news for civil liberties and civil libertarians, there are questions remaining.

Should this case be appealed to the Supreme Court and granted certiorari, do you think the current SCOTUS dominated by the Gang of Five (Scalia, Alito, Roberts, Thomas and Kennedy) will uphold the 9th’s ruling or overrule? Does this example of checks and balances working as they should restore your faith in the wisdom of the Separation of Powers Doctrine? Do you think DHS will comply with the ruling or ignore it and do as they please? Does this ruling do anything to assuage your concerns for your privacy and the trampling of your 4th Amendment and other Constitutional rights?  What do you think?

Source(s): Techdirt, U.S. v. Cotterman, No. 09-10139 (.pdf)

~submitted by Gene Howington, Guest Blogger