The Border Search Doctrine and Data

-- By ArchanHazra1 - 06 Mar 2015

Introduction

The border search doctrine carves out an exception to the Fourth Amendment’s requirement of either a warrant or even individualized suspicion prior to search and seizure. The Supreme Court has often articulated the broad authority that the federal government has in searching those that enter the United States: “[s]ince the founding of our Republic, Congress has granted the Executive plenary authority to conduct routine searches and seizures at the border, without probable cause or warrant, in order to regulate the collection of duties and to prevent the contraband into this country.” United States v. Montoya de Hernandez, 473 U.S. 531, 536 (1985). Indeed, Congress has used broad language to grant discretion to customs officers in safeguarding the borders. 19 U.S.C. § 1581(a), for example, grants officers the ability to “go on board of any vessel or vehicle . . . to search the vessel or vehicle and every part thereof and any person, trunk, package, or cargo on board.” So while the Fourth Amendment ordinarily offers some protection against search and seizure, the protections it offers at the border are basically nonexistent. And at first blush, there is no reason to think that the protections it offers to one’s data are any less non-existent—even in the aftermath of Riley v. California.

Digital is Different

Digital is different is a common mantra of privacy advocates. In his concurrence in Riley, Justice Alito felt that “the Court’s broad holding favors information in a digital form over information in hard-copy form.” He noted that the police can seize and examine incriminating snapshots in a wallet, but would be unable to examine such snapshots if they were stored on a cell phone. 134 S.Ct. 2473, 2497 (2014). But this ignores the fundamental difference between electronic devices and non-electronic mediums of storing information: the former “are capable of storing warehouses full of information.” Cotterman, 709 F.3d at 964. The former are capable of storing a person’s entire digital life—work files, photographs, emails, movies, music, browser history, etc.—making every small preference readily apparent. This is why allowing for the search of electronic devices without suspicion under the border search doctrine would be an affirmative step in extending its scope. A large number of Americans—lawyers, journalists, scholars—who travel internationally with sensitive information. Someone operating under the auspices of the First Amendment should not have to fear the possibility that the government is trawling through his or her encrypted data to dig up dirt.

The Supreme Court, however, has never examined the question of whether the border search doctrine extends to data, such as that retrieved from the computer or cell phone of someone looking to enter the United States. The Fourth Circuit, in United States v. Ickes, found that the “cargo” language extended to a hard drive found in the defendant’s laptop, affirming the right to search through it. The Ninth Circuit, though, has drawn a distinction between “cursory inspection” and the “comprehensive and intrusive nature of a forensic examination.” United States v. Cotterman, 709 F.3d 952, 962 (9th Cir. 2013). In that case, while the border agents did initial searches of the laptops—and did not find anything—they also created copies of the hard drives. The government, at that point, conducted a forensic computer search, a time-consuming process that is as follows (as detailed by the court in United States v. Saboonchi, 990 F. Supp. 2d 536, 547-548 (D. Md. 2014):

1) A “bitstream” copy or “image” of the original storage device is saved as a “read only” file.

2) Special software is used to search the full contents of the drive.

3) The “slack space” of the drive is probed for any deleted files.

The thoroughness of a forensic search raises the question of whether it requires any indicia of suspicion under the border search doctrine—simply opening up someone’s laptop at the border and looking through the files certainly does not. The Ninth Circuit thinks there is a difference, which is why it found that reasonable suspicion is required for the government to be able to do a forensic search—going so far as to call it a “computer strip search.”

Using Encryption to Safeguard One's Data

So what does this mean for the international traveler? It’s hard to tell considering that only one circuit has looked at whether forensic data searches can be conducted without suspicion. One important question to ask is what happens when one’s data is encrypted. At the very least, someone can encrypt his or her files, thus preventing a “cursory” search and requiring a forensic search. The Ninth Circuit in Cotterman found that the commonplace nature of password-protected files—for business travelers, students, and even casual computer users—meant that the government could not simply rely on the existence of encryption to find suspicion. On the other hand, the Cotterman court did assert that the existence of encrypted files—in conjunction with “other indicia of criminal activity”—can be used to find suspicion. 709 F.3d at 969. And courts are likely to be deferential to the authorities’ determination of suspicion Nonetheless, when crossing the border, encrypting one’s files may be the best means—short of just leaving them at home—of keeping one’s files out of government hands.

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