old_computer.jpgA federal appeals court in San Francisco ruled today that border agents must have a reasonable suspicion of criminal activity before they can conduct extensive searches of the data in electronic devices such as laptops, computer tablets and smartphones.

A panel of the 9th U.S. Circuit Court of Appeals said by an 8-3 vote, “A person’s digital life ought not to be hijacked simply by crossing a border.”

Circuit Judge Margaret McKeown wrote that “even in the face of heightened concerns, we must account for the Fourth Amendment rights of travelers” to be free of unreasonable searches.

In general, a principle known as the “border search doctrine” allows agents to conduct routine searches without a court warrant of the property of people entering the United States from the Mexican or Canadian borders or at airports.

The court majority said that while that doctrine applies to an initial search of devices such as laptops and cellphones, a more extensive search of the data they contain must be based on a reasonable suspicion.

Hanni Fakhoury, a lawyer with the Electronic Frontier Foundation in San Francisco, said the decision is the first time a federal appeals court has ruled that reasonable suspicion is needed for a search of electronic data.

“We need to recognize that the breadth of data being stored electronically requires constitutional protection,” he said.

Fakhoury said the issue appears likely to be headed to the U.S. Supreme Court because another federal appeals court, the Richmond, Va.-based 4th Circuit, has ruled agents need not have a reasonable suspicion of a crime in order to search electronic devices.

For now, the 9th Circuit decision applies in California and eight other western states in the circuit.

The panel ruled in the case of Howard Cotterman, 72, a Truckee resident who was stopped at the Arizona border on April 2007 as he and his wife were driving home from a five-month trip to Mexico.

After learning that Cotterman was a registered sex offender with a 1992 conviction for child molestation, agents seized his laptop and took it to a customs investigations office 170 miles away in Tucson.

A forensic examiner at that office allegedly eventually found hundreds of child pornography images on the computer, including some that allegedly showed Cotterman molesting a girl between the ages of seven and 10 years old.

Cotterman is now in custody in Arizona awaiting trial there on federal charges of producing, transporting and receiving child pornography.

He also faces separate charges in federal court in Sacramento of commission of a sex crime against a minor by a registered sex offender and possession of child pornography.

The trials have been delayed during appeals of whether evidence from the laptop can be used against him.

In today’s decision, the appeals court turned down Cotterman’s bid to suppress the evidence, saying that while agents needed a reasonable suspicion to search his computer, they did have such suspicion in his case.

The court said the reasonable suspicion was grounded on his previous conviction combined with the facts that he had traveled frequently and was then returning from a country that was sometimes visited for so-called “sex tourism,” or exploitation of children.

According to a brief filed by federal prosecutors in 2009 to oppose bail for Cotterman, his 1992 conviction occurred in Santa Clara County Superior Court and was on 33 charges including child molestation and lewd conduct on children.

The federal prosecutors said Cotterman had visited 14 preschool and childcare centers in August 1991 and gained access to 11 children between the ages of 3 and 6 by posing as a social services department doctor.

Cotterman was sentenced in Santa Clara County Superior Court to four years in prison for that conviction, the brief said. He could face life in prison if convicted of the current charges, it said.

The standard of “reasonable suspicion” set by the appeals court is a step below the stricter probable cause standard normally needed to obtain a search warrant from a court.

McKeown called it a “modest, workable standard” in the majority opinion and said it would not impede border agents’ ability to conduct appropriate searches of electronic devices.

McKeown wrote, “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 (constitutional) Fourth Amendment’s specific guarantee of the people’s right to be secure in their papers,” she said.

The three dissenting judges, in an opinion by Judge Milan Smith, said the standard set by the majority would cause confusion, take away from the discretion needed by border agents and create national security concerns.

“By providing special privacy protections for electronic devices at the border, the majority eliminates the powerful deterrent of suspicionless searches and significantly aids technologically savvy terrorists and criminals,” Smith wrote.

Julia Cheever, Bay City News

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