By Scott Aurnou
In February 2013, this website discussed the effective non-existence of 4th Amendment protections at U.S. border crossings. For years, under what is known as the ‘border search exception,’ U.S. border agents have had unfettered authority to examine and search any luggage – including any cameras, laptops, mobile phones, tablets and other electronic devices – of anyone entering the United States without any justification needed.
Less than a month later, a major decision from the United States Court of Appeals for the Ninth Circuit Court (a Federal appellate court encompassing the states and territories of Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, the Northern Mariana Islands, Oregon and Washington State) in a case called United States v. Cotterman has added a new wrinkle. While the Court ruled that border agents can still perform a standard search of electronic devices at will, they must have a ‘reasonable suspicion’ of criminal activity before the devices can be subjected to a deeper forensic analysis used to uncover data not readily apparent upon the initial examination on the device. This reasonable suspicion can be based upon the ‘totality of the circumstances,’ as opposed to a single specific incriminating item or event.
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