Arizona Border Search Case May Go To The Supreme Court

January 02, 2014

A Tucson lawyer has asked the United States Supreme Court to take up a case that may help determine just how thoroughly border officials can search electronics from U.S. citizens without reasonable suspicion.

This is one of a number of cases making its way through the courts that seek to limit the government’s right to dig into personal electronic files at international borders.

Every day, thousands of people cross the border under the scrutiny of the U.S. port inspectors. Customs and Border Protection inspectors, dressed in blue, are looking for contraband: humans, narcotics, or illegal imports. Sometimes a quick question or a quick peek in the trunk is enough to get by.

Except, if inspectors want to do so, they can exercise what’s called the border search exception. It’s a rule designed to provide an exception to the Fourth Amendment’s limits on search and seizure.

Those same rules apply to your tablet or laptop, or even the photos you carry on your smartphone. Privacy advocates have fought some of these cases in court.

Consider Lisa Wayne's case. In 2008, Wayne was returning from Mexico through the Dallas airport with her laptop. At the time she was president of the National Association of Criminal Defense Lawyers. An inspector stopped her.

"He said 'I see that you are an attorney' and I said 'yes' and he said, 'are you coming back from seeing a client?' and I said 'well I wouldn’t be a very good attorney if I disclosed that to you,'" she said.

Wayne says at that point, the agent took her laptop away. She doesn’t know what was copied or what was looked at.

"We don’t know, was it random? What information was there that made them believe they should be looking at my laptop?"

Wayne's laptop was returned that day. That’s not always the case. In 2010, David House was also returning from Mexico. He was working on the team raising funds for the soldier who leaked State Department cables to Wikileaks. His computer wasn’t returned for seven weeks and his files were copied.

In 2013, the U.S. Justice Department settled the lawsuit filed by the American Civil Liberties Union and agreed to destroy the files it had kept.

The ACLU has estimated about 6,500 people had their electronic devices searched as they entered the country between 2008 and 2010.  And as it stands right now, these searches at the border are still legal, says the ACLU’s Catherine Crump.

"And by the way, the ACLU thinks that’s wrong and unconstitutional but that’s what the Ninth Circuit [Court Of Appeals] has held for now," she said.

The case the Supreme Court is being asked to consider right now involves this question: Can the searches go even deeper than a cursory border inspection – taking your computer away to conduct what’s called a forensic search. That’s what nabbed Howard Cotterman in 2007.

"They use this forensic software that can look in unallocated space to find things that you think you deleted and so forth," said Cotterman's attorney, Bill Kirchner.

Cotterman is not a sympathetic character in this battle.

In 2007, Cotterman and his wife were crossing into the U.S. with a laptop and a camera. He has a child molestation conviction on his record and that triggered an alert. His laptop was taken 170 miles away to a Tucson lab and investigated byte by byte. Investigators eventually found almost 400 child pornography photos on his computer.

In prison ever since, Cotterman has fought the case, saying the meticulous search went beyond what investigators are allowed to do under reasonable suspicion rules.

The Justice Department would not respond to repeated requests for comments for this story but it has already filed a brief with the Supreme Court asking the court not to hear Cotterman's case.

The Supreme Court is expected to decide whether it will take up Cotterman’s complicated case in January. Privacy advocates like the ACLU are watching closely, hoping the case will begin to define the limits of when and how deeply invasive electronic searches can go.