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Federal appeals court says 'reasonable suspicion' required for some electronic border searches

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SF security camera privacy stock 1024
SF security camera privacy stock 1024

The Ninth Circuit Court of Appeals has determined that "reasonable suspicion" can be required to search electronic devices at the border, potentially raising the bar for police there. For the past several years, activists have attempted to set higher standards for when laptops or other devices can be seized and searched by border police. In a recent report, the Department of Homeland Security's civil liberties watchdog group said that "overall authority to conduct border searches without suspicion or warrant is clear and longstanding," and electronic devices were included in that mandate. Now, the court's decision could complicate that policy, as well as raise further questions about what it takes to search devices that often serve as a portal to someone's entire life.

"Even at the border, we have rejected an 'anything goes' approach."

In its decision on US vs. Cotterman, the court addressed whether evidence seized by Customs at the US-Mexico border could be used in a child pornography case. While a previous hearing did not raise the issue of whether reasonable suspicion was required for routine searches, this decision found that "Even at the border, we have rejected an 'anything goes' approach," and police needed reasonable suspicion to conduct an "intrusive" forensic examination that cracked secured files on the computer. "The uniquely sensitive nature of data on electronic devices, which often retain information far beyond the perceived point of erasure, carries with it a significant expectation of privacy and thus renders an exhaustive exploratory search more intrusive than with other forms of property."

In Cotterman's case, that requirement was met because of several factors, including a prior child-related sex crime. More generally, though, the court's statement contradicts what the Department of Homeland Security has pushed for. It also could add yet another strand to the increasingly complicated web of decisions governing when and how police away from the border can search things like cellphones. Given that standards at the border are generally considered to be lower than those inside the country, the need for reasonable suspicion even there could lend weight to arguments against allowing police to collect phone information without a warrant.