Wired reports on the implications of the U.S. Supreme Court’s refusal to review a ruling (pdf) by the Court of Appeals for the Ninth Circuit in California in United States v. Cotterman that held that a forensic search of an electronic device confiscated by agents at the border required reasonable suspicion of criminal activity. Wired reports:
A convicted sex offender’s loss at the Supreme Court today was indirectly a boost to the privacy rights of travelers crossing the border to the United States.
Without issuing a ruling, the justices let stand an appeals court’s decision that U.S. border agents may indeed undertake a search of a traveler’s gadgets content on a whim, just like they could with a suitcase or a vehicle. That is known as the ”border search exception” of United States law, where travelers can be searched without a warrant as they enter the country. The Obama administration has aggressively used this power to search travelers’ laptops, sometimes copying the hard drive before returning the computer.
However, in a rare win for digital privacy, the 9th U.S. Circuit Court of Appeals’ ruling last year concluded that a deeper forensic analysis by border officials using software to decrypt password-protected files or to locate deleted files now requires “reasonable suspicion” of criminal activity — an outcome the justices refused to tinker with today.
That means, in essence, the authorities must have some facts, rather than a hunch, that illegal activity is afoot to perform a forensic analysis on electronics seized along the border of the western United States. […]
The appeals court found enough “reasonable suspicion” based on the facts that Cotterman was on a “lookout” list — because he was a convicted sex offender and frequently traveled to Mexico, a known destination for sex tourism. What’s more, adding to reasonable suspicion, under what the court labeled as the “totality of the circumstances,” was the fact that some of the files on one of the laptops were password protected.
Cotterman’s lawyers urged the Supreme Court to reverse the decision, and uphold a district court judge’s ruling that the authorities did not have the power to whisk away the gadgets for inspection at all. (.pdf)