Earlier this month, March 8, 2013, the Ninth Circuit U.S. Court of Appeals issued a ruling related to the warrantless forensic examination of electronic data on a laptop that was seized at the U.S.-Mexico border in Arizona (U.S. v. Cotterman, No. 09-10139). The fallout from the U.S. v. Cotterman ruling is significant in that, going forward, law enforcement agencies, absent some “particularized” suspicion, will be barred from conducting an unfettered dragnet of electronic data stored on hardware devices brought into the U.S. by international travelers. The 9th Circuit’s determination of a “reasonable suspicion” requirement is consistent with its other rulings involving the search and seizure of electronic data.
The Court opined that the “uniquely sensitive nature of data [stored] on electronic devices” gives rise to a significant expectation of privacy that renders an exhaustive exploratory, or in Cotterman’s case, forensic, search more intrusive than a mere cursory scan, or quick look, through the electronic device. The Court continues to state that “digital media nowadays contains volumes of intimate details of our lives. It is simultaneously an office and personal diary. This type of material implicates the 4th Amendments specific guarantees of the people’s right to be secure in their papers.”
In the “cloud,” an electronic device (i.e. laptop) is merely a conduit for accessing user data that, in earlier times, would be akin to sensitive “papers” found in the home – thus triggering 4th Amendment protections for the cloud data. While the information stored in the “cloud” may not itself cross the U.S. border, it may appear as a “seamless part of the digital device when presented at the border.” In making reference to cloud computing technology, the Court seems to not distinguish between the type of hardware being used to store electronic data. Regardless of whether the device is mobile, like a laptop, or stationary, like a server, a warrant is needed, absent reasonable suspicion, to search the content of any electronic device.
The Cotterman conclusion is consistent with, and builds upon, other “electronic data” 4th Amendment cases brought before the 9th Circuit. In U.S. v. Comprehensive Drug Testing (the “Balco” case), the Court was asked to determine the proper administration of a search warrant. In the Balco case, the Court determined that special, independent third-parties must segregate and redact seizable data from non-seizable data when the Government wants to execute a search warrant of electronic databases. Again, the Court is trying to prevent the Government from conducting an unfettered dragnet on persons who might not even be aware that information is being seized about them.
As for Mr. Cotterman’s narrative, the Court did conclude that the forensic examination of his laptop required a showing of reasonable suspicion, however the facts, viewed in totality of the circumstances, supported the Government’s assertion that the border agents had acted upon reasonable suspicion in conducting the initial search of Mr. Cotterman’s laptop and subsequent forensic examination.