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Posted in Privacy & Security Litigation

Ninth Circuit Rules Reasonable Suspicion of Criminal Activity Required before Forensic Examination of Electronic Device at Borders

On March 8th, the United States Court of Appeals for the Ninth Circuit, sitting en banc, held in United States v. Cotterman (PDF) that the Fourth Amendment requires border agents to have at least a reasonable suspicion of criminal activity before they may conduct a forensic examination of a person’s electronic device. Hogan Lovells lawyers briefed and Hogan Lovells partner Chris Handman argued as amicus on behalf of the Constitution Project, a bipartisan, not-for-profit organization that promotes consensus-based solutions to the significant constitutional questions facing Americans in the 21st century.

In this case, border agents seized a laptop that was presented for inspection at the United States-Mexico border by a U.S. citizen seeking reentry into the country. The laptop was held for two days, transported over 170 miles to a secondary search facility, and subjected to forensic examination. Only then was illegal material located on the computer.

The government argued that it did not need any justification—let alone reasonable suspicion—for seizing, holding, and forensically examining the laptop. The government insisted that it enjoyed this unfettered authority to search under the so-called border-search exception to the Fourth Amendment. Under that exception, the Supreme Court has held that the government may search cars, boats, luggage, and other personal effects at the border without any hint of suspicion. A majority of the three-judge panel that originally heard the appeal agreed with the government that the border-search exception applied equally to electronic devices like computers and cell phones.

The defendant in the case petitioned for rehearing en banc, and the Constitution Project filed an amicus brief in support of rehearing. In its brief, the Constitution Project emphasized that the panel decision unduly eroded Fourth Amendment protections at the border and relied on anachronistic reasoning that has no place in the digital era. The Constitution Project further noted that this was a recurring issue of exceptional importance that warranted rehearing by the full en banc court. The court granted the petition, and later also granted leave to the Constitution Project to present oral argument as an amicus.

On March 8th, the en banc court issued its ruling. The majority opinion noted that this was a “watershed case” that “implicates both the scope of the narrow border search exception to the Fourth Amendment’s warrant requirement and privacy rights in commonly used electronic devices.” It then adopted the argument that the Constitution Project alone had advanced: that forensic searches of electronic devices at the international border cannot occur without reasonable suspicion. The court also accepted many of the arguments the Constitution Project had raised in its brief: that “technology matters,” that the reasonableness of a search “must account for differences in property,” and that “the uniquely sensitive nature of data on electronic devices carries with it a significant expectation of privacy and thus renders an exhaustive exploratory search more intrusive than with other forms of property.”

Chris Handman (partner, Washington, D.C.) led the Hogan Lovells team in this effort and presented oral argument for the Constitution Project, and Mary Helen Wimberly (associate, Washington D.C.) was the principal drafter of the brief. In addition, Cate Stetson (partner, Washington, D.C.), Dom Perella (associate, Washington, D.C.), and Sean Marotta (associate, Washington, D.C.) helped with oral argument preparation.