BLOG BULLETS:

• Riley v. California’s concern about the grossly more intrusive nature of cell phone and computer searches applies equally in the border search context.
• While a traveler has a diminished expectation of privacy at the border, the arrestees in Riley had a diminished expectation of privacy as arrestees, and the purposes of the border search exception, while different than the purposes of the search incident to arrest exception in Riley, aren’t significantly more advanced by forensic computer searches.
• This raises doubt about the Ninth Circuit’s holding in United States v. Cotterman that the border search exception allows full forensic searches of laptop computers based on just reasonable suspicion and without a warrant.

NOW THE BLOG:

Last week’s post discussed the impact of Riley v. California, 134 S. Ct. 2473 (2014) on one of the Ninth Circuit’s holdings inUnited States v. Cotterman, 709 F.3d 952 (9th Cir. 2013) (en banc), namely, the holding that allows completely suspicionless non-forensic searches of computers at the border. The post suggested there’s a strong argument that holding is at the very least limited by Riley and arguably overruled by Riley.

This leaves the question of what, if any, impact Riley has on the second holding of Cotterman – that forensic searches of a computer – which delve into not only the multitude of personal information deliberately stored on the computer, but also material in “unallocated space” that the owner thinks he’s deleted – can be conducted without a warrant and with only reasonable suspicion rather than probable cause. Can this holding stand after Riley’s emphatic recognition of the far greater intrusiveness of cell phone (and, by analogy, computer) searches?

The tenor of Riley’s analysis certainly seems to invite reconsideration of Cotterman’s forensic computer search holding. As illustrated in last week’s post, perhaps ad nauseum,Riley emphasized that searches of cell phones and computers are grossly more intrusive, both quantitatively and qualitatively, than more typical searches of a person or objects the person is carrying. It held that those differences took cell phone searches outside the scope of the Fourth Amendment exception at issue there – the search incident to arrest exception. And the Supreme Court didn’t then choose some intermediate standard pursuant to some balancing test, but turned to the general Fourth Amendment default requirement of a warrant supported by probable cause. As it stated in the concluding paragraph of its opinion:

Modern cell phones are not just another technological convenience. With all they may reveal, they hold for many Americans “the privacies of life,” Boyd [v. United States, 116 U.S. 616,] 630 [(1886)]. The fact that technology now allows an individual to carry such information in hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to arrest is accordingly simple – get a warrant.

Riley, 134 S. Ct. at 2494-95.

The same concern about “all they may reveal” and citizens’ “privacies of life” applies to cell phones and laptop computers being carried by citizens who travel across the border. Just as “[p]rior to the digital age, people did not typically carry a cache of sensitive personal information with them as they went about their day,” Riley, 134 S. Ct. at 2490, travelers did not typically carry such a cache when they traveled to and from other countries. Just as people going about their ordinary daily activities used to carry just those personal documents and/or information they happened to need at that time, travelers took just those documents and/or information they needed for a particular trip. The consolidation of information on cell phones and/or laptop computers now prevents that sort of deliberate choice about what to bring, so travelers must make a sort of “all or nothing” decision in deciding what to take with them. That – and the other considerations emphasized in Riley – take electronic devices such as cell phones and laptop computers outside otherwise applicable Fourth Amendment exceptions and back within the core requirement of a warrant supported by probable cause.

Riley also suggests that Cotterman’s partial reliance on “a traveler’s diminished expectation of privacy at the border,”Cotterman, 709 F.3d at 963, does not justify the Cottermanholding. An arrestee also has a diminished expectation of privacy, as Riley recognized. See Riley, 134 S. Ct. at 2485, 2488. The response in Riley was that this fact “does not mean that the Fourth Amendment falls out of the picture entirely,” id. at 2488, and that cell phone searches were different because they “place vast quantities of personal information literally in the hands of individuals,” id. at 2485. The same reasoning suggests the diminished expectation of privacy at the border is not enough.

Riley did also consider the purposes of the Fourth Amendment search incident to arrest exception at issue there and based its decision in part on the fact that those purposes were not significantly advanced by cell phone searches. See id. at 2485-88. And the purposes of the search incident to arrest exception at issue in Riley – which are ensuring officer safety and preventing the destruction of evidence, see id. at 2485-86 – are concededly different than the purpose of the border search exception at issue in Cotterman – which is “preventing the entry of unwanted persons and effects,” Cotterman, 709 F.3d at 960 (quoting United States v. Flores-Montano, 541 U.S. 149, 152 (2004)). But just as the rationales for the search incident to arrest exception considered in Riley do not have “much force with respect to the digital content on cell phones,” Riley, 134 S. Ct. at 2484, the rationale for the border search exception does not have much force with respect to the digital content on laptop computers. The way in which “unwanted effects” are usually brought into the country is in suitcases, vehicles, and other containers, not electronic devices such as cell phones and laptop computers. While the devices and/or their cases might in theory contain physical contraband, the devices could certainly be physically searched. Cf. Riley, 134 S. Ct. at 2485 (noting that officers “remain free to examine the physical aspects of a phone to ensure that it will not be used as a weapon – say, to determine whether there is a razor blade hidden between the phone and its case”). Electronic contraband is relatively rare and can be sent across the border in other ways, such as via the internet and/or e-mail, or through the use of the “cloud computing” which both Riley and Cotterman described, see Riley, 134 S. Ct. at 2491; Cotterman, 709 F.3d at 965. The child pornography which was actually found on the computer inCotterman was likely on the computer when the defendant traveled out of the country and was “imported” only in the sense of being brought back in on the same computer it was always on. The rare occasions on which a border search may reveal this sort of “electronic smuggling” seem insufficient to offset the sweeping intrusion on “the privacies of life” which controlled inRiley.

The bottom line is there seems to be a strong argument that the reasons Riley gave for finding the search incident to arrest exception inapplicable to cell phone searches support finding the border search exception inapplicable to laptop computers. Perhaps border searches are sufficiently different from searches incident to arrest to distinguish Riley, but it’s certainly worth litigating. Here in the Ninth Circuit, we can argue for en banc reconsideration or Supreme Court review of Cotterman’s approval of forensic computer searches on just reasonable suspicion, and our friends in other circuits can simply argue thatCotterman is unpersuasive after Riley.