By Saundra McDavid
Faculty Member, School of Business at American Public University
What privacy rights do you have if your laptop is seized at a United States border crossing? The case United States v. Cotterman revolves around this issue. It touches on the topics of the search and seizure requirements of the Fourth Amendment, the legal right to search computer content and the legal right to remove the computer from the scene. Of interest here is how advances in cybersecurity and computer forensics are changing how the Fourth Amendment is applied.
Howard W. Cotterman was returning to the U.S. after a vacation in Mexico in April 2007. Cotterman was a registered U.S. sex offender due to a 15-year-old child molestation conviction. He was stopped at the U.S. border, where his laptop was searched briefly, confiscated and shipped to a forensics lab 170 miles away. During the ensuing forensics examination of his laptop, forensic technicians found child pornography and evidence of Cotterman committing more sex crimes.
During the initial investigation at the border, customs agents discovered password-protected folders on Cotterman’s laptop. The agents declined Cotterman’s offer to help bypass the security, rightfully claiming that he might attempt to delete the folders instead.
Cotterman objected to the admission of the child pornography and sex crimes evidence at his trial, claiming that a cursory search at the border was all that was allowed under the Fourth Amendment. He claimed that sending the computer for an in-depth forensics analysis violated his right to privacy.
Did US Border Agents Have a Reasonable Suspicion to Search His Laptop?
The first legal issue to be addressed was whether the agents had a reasonable suspicion to search Cotterman’s computer. The court held that a cursory examination by border agents of items in international transit is permissible, regardless of whether there is any suspicion of a crime.
However, the border agents went further. They sent the computer to an offsite forensics lab.
The court ruled that keeping an item for further investigation is not considered an extended border search, which would have required a higher standard of suspicion. Since the computer never cleared Customs and Cotterman never regained possession of it, there was no additional interference with his right to privacy.
The court then evaluated the issue of whether the detailed forensics investigation violated Cotterman’s Fourth Amendment rights. The court equated this investigation to reading a person’s diary, line by line, searching for evidence of a crime, with all deleted sentences included in the search.
No reasonable person would agree to that type of search when crossing a border. The requirement of reasonable suspicion then becomes a key factor in this case. The court held that there must be a showing of reasonable suspicion to allow this type of detailed search under the Fourth Amendment.
Was There Reasonable Suspicion in the Cotterman Case?
Due to Cotterman’s past crimes and the frequency of his traveling to an area known for sex crimes, the court ruled that reasonable suspicion had existed. Ironically, in arriving at this conclusion, the fact that there were password-protected files was not awarded much weight.
Today, password protection is ubiquitous and doesn’t indicate guilt. However, password protection can be evaluated in the totality of the circumstances. In this case, the existence of the files led to a more protracted and lengthy forensics exam.
There are several Fourth Amendment implications here. The first is that a border search is an exception to the Fourth Amendment standard for searches.
But there is a circular logic here, too. At the border, searches are reasonable simply because they are at the border. The United States has a clear interest in protecting the border. This means a lower expectation of privacy can be expected.
A second Fourth Amendment implication, as highlighted by Boston University School of Law student Samuel A. Townsend, is the clarification of forensic searches and cursory searches. This clarification has great implications for both law and cybersecurity. As forensic technology improves, the differences between these two types of searches will shrink. It will become easier and quicker to engage in a detailed search of a computer at the border.
About the Author
Saundra McDavid is an associate professor in the School of Business who teaches courses in law, technology and business strategy for American Public University. Saundra holds a B.S. in business administration from the University of Kansas, an M.B.A. in business administration and a J.D. in law from Saint Louis University. She is currently pursuing a master’s in cybersecurity at American Public University. She is also an attorney practicing in the areas of cybersecurity law and intellectual property.