Silver Lining in Supreme Court Not Overturning A Decision About Computer Searches at Border

Wired the other day tried to see the bright side of a
seemingly crummy recent Supreme Court action re: searching
our electronic devices at borders.

The jist:

the justices let stand an appeals court’s
decision that U.S. border agents may indeed undertake a
search of a traveler’s gadgets content on a whim, just like they
could with a suitcase or a vehicle. That is known as
the ”border search exception” of United States law, where
travelers can be searched without a warrant as they enter the
country. The Obama administration has aggressively used this power
to search travelers’ laptops, sometimes copying the hard drive
before returning the computer.

However, in a rare win for digital privacy, the 9th U.S.
Circuit Court of Appeals’ ruling last year concluded that a deeper
forensic analysis by border officials using software to decrypt
password-protected files or to locate deleted files now requires
“reasonable suspicion” of criminal activity — an outcome the
justices refused to tinker with today.

That means, in essence, the authorities must have some facts,
rather than a hunch, that illegal activity is afoot to perform a
forensic analysis on electronics seized along the border of the
western United States.

“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,” the San
Francisco-based appeals court ruled (.pdf)
last year.

As is often the case where cases set forth good legal
principles, the specific person involved in the case, Howard
Cotterman, did not benefit from the principle, since the Court
believed in his case the authorities did have such reasonable
suspicion.

Surprisingly the government did not take issue with the
appellate court’s conclusion that reasonable suspicion was required
for a deeper inspection of gadgets, which have become virtual
extensions of ourselves, housing everything from email to
instant-message chats to our papers and effects.

The government argued that reasonable suspicion of criminal
activity was present. The government told the justices that
Cotterman “was
suspected of sex tourism” (.pdf) and “petitioner was suspected
of being involved in child pornography as part of Operation Angel
Watchdog, which targeted registered sex offenders who frequently
traveled internationally.

Reason 24/7 on another recent crummy

lower court decision on border searches of our
electronics.

Hat tip: Laura Gandler