Sunday, March 10, 2013

Case o' The Week: Appreciate the Inch, Would Have Preferred the Mile -- Cotterman, the Fourth Amendment, and Computer Forensic Searches

“It was essentially a computer strip search.” United States v. Cotterman, 2013 WL 856292, *9 (9th Cir. Mar. 8, 2013) (en banc), decision available here.
Hon. Margaret McKeown
  In six years, the Ninth has gone from (we argue, incorrectly) comparing a laptop to a briefcase, to (correctly) recognizing that a full forensic EnCase analysis of a hard drive raises enormous privacy ramifications and squarely implicates the Fourth Amendment.
  Cotterman is a complex and important decision: it lays the foundation for future Fourth Amendment challenges based on the unique nature of digital devices and the intrusiveness of digital forensic searches. But, as dissenting Judge Milan Smith warns, this defense victory comes with some real defense costs as well.

Players: Important en banc decision by Judge McKeown. Dissents by Judges Callahan and M. Smith.

Facts: Howard Cotterman had 15-year old sex priors. Id. He was stopped at the Mexican border and computers and cameras were seized. Id. Inspection of the computers revealed no porn, but did disclose password-protected files. Id. The devices were taken roughly 170 miles into the US, where forensic examination ultimately revealed child porn and evidence of molestation. Id. at *2. The district court held that the “extended border search” was. Id. at *3. The evidence was suppressed. Id. A divided panel of the Ninth reversed, concluding “reasonable suspicion” was not needed for an extended border search. Id. ; see also blog here  
   The case went en banc.

Issue(s): “This watershed case implicates both the scope of the narrow border search exception to the Fourth Amendment’s warrant requirement and privacy rights in commonly used electronic devices. The question we confront is what limits there are upon this power of technology to shrink the realm of guaranteed privacy. More specifically, we consider the reasonableness of a computer search that began as a cursory review at the border but transformed into a forensic examination of Cotterman's hard drive.” Id. at *1 (quotations and citation omitted). “The difficult question we confront is the reasonableness, without a warrant, of the forensic examination that comprehensively analyzed the hard drive of the computer.” Id. at *5.

Held:We are now presented with a case directly implicating substantial personal privacy interests.” Id. at *7.“”We rest our analysis on the reasonableness of the search, paying particular heed to the nature of the electronic devices and the attendant expectation of privacy.” Id. Mindful of the heavy burden on law enforcement to protect our borders juxtaposed with individual privacy interests in data on portable digital devices, we conclude that, under the circumstances here, reasonable suspicion was required for the forensic examination of Cotterman's laptop. Because border agents had such a reasonable suspicion, we reverse the district court's order granting Cotterman's motion to suppress the evidence of child pornography obtained from his laptop.” Id. at *5. 
   “It is the comprehensive and intrusive nature of a forensic examination – not the location of the examination – that is the key triggering the requirement of reasonable suspicion here.” Id. at *6.

Hon. Judge Milan Smith
Of Note: With these new rules for forensic searches, why didn’t Cotterman win? Dissenting Judge M. Smith asks the same question, in a compelling challenge to the Court’s reasonable suspicion finding. Id. at *31. He particularly questions the majority’s resurrection of a reasonable suspicion argument strategically waived by the government. Id. at *29. Judge Smith is also critical of the “floating border” created by the majority, that permits lowered border-search requirements to envelop an object taken hundreds of miles away. Id.  
   Judge Smith throws some needed cold water on our ebullience about new Fourth Amendment rules for technology: this win came at the cost of a loss on extended border searches, bad precedent on government appellate waiver, and an erosion of the meaning of the “reasonable suspicion” test.      

How to Use: “The point is technology matters.” Id. at *9. On its surface, Cotterman clarifies border searches. In reality, however, this is a seminal recognition of the privacy expectations arising from lives now deeply intertwined with technology. A computer is not like a briefcase (see Giberson blog here), and Judge McKeown carefully and correctly explains why. Id. at *8-*9. Start with Cotterman for any Fourth challenge involving technology: it will be the foundation for many a future attack. Id. at *9.
For Further Reading: It’s tragic: on Gideon’s fiftieth anniversary, Defender’s offices are being disproportionally decimated by sequestration. For a sobering report on the cuts inflicted on one respected office, see article here.

Image of the Hon. Judge Margaret McKeown from
Image of the Hon. Judge Milan Smith from

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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