Most travelers have little expectation of privacy when they cross an international border. Searches of cars, luggage, clothing, and even gift-wrapped presents are the price of admission, in any country. Recently, however, federal officials at some US border crossings entered a new realm of intrusiveness by thoroughly examining the contents of laptop computers, triggering legal challenges.
In a much-anticipated ruling in March, the federal 9th Circuit Court of Appeals, covering Arizona, California, and some other Western states, ruled that an invasive computer search that copied and analyzed data — a so-called forensic search of a hard drive — was illegal. It is an important victory for digital privacy, but was narrowly written not to impinge on the ability of border guards to search for conventional types of contraband like tainted fruits or illegal drugs. Other jurisdictions should follow its wisdom.
In the case, United States v. Cotterman, customs agents copied the hard drives of laptop computers, used a program called EnCase to unlock the protected features in the computer, and kept the computers for several days. The government claimed that the exhaustive search, which took place 170 miles from the customs site, was simply an “extended border search.” The court summarily dismissed that fallacy, and noted that nothing is inherently suspect about encryptions or password protections. A computer is like a “diary,” the judges ruled, and border agents cannot read it word-for-word under some ruse that it is merely a border search.
Any exploratory search into the depths of a hard drive must be based on reasonable suspicion of wrongdoing. In the Cotterman case, the judges said, the border guards did in fact have a reasonable suspicion, and thus were justified in making that particular search. But in rejecting the government’s claim that all such searches are automatically allowable as part of border screenings, the 9th Circuit struck an important blow for privacy. Computers may be physical things, but they also contain the most personal of information.