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U.S. can conduct offsite searches of computers seized at borders, court rules

Appeals Court judge reaffirms government's authority to conduct warrantless searches of digital devices along U.S. borders

April 6, 2011 03:45 PM ET

Computerworld - Laptop computers and other digital devices carried into the U.S. may be seized from travelers without a warrant and sent to a secondary site for forensic inspection, the U.S. Court of Appeals for the Ninth Circuit ruled last week.

The ruling is the second in less than a year that allows the U.S. government to conduct warrantless, offsite searches of digital devices seized at the country's borders.

A federal court in Michigan last May issued a similar ruling in a case challenging the constitutionality of the warrantless seizure of a computer at the Detroit Metropolitan Airport. The defendant in a child pornography case also contended that a subsequent search of the device at a secondary computer forensic facility violated the Fourth Amendment of the Constitution.

Several other courts, including the Ninth Circuit itself, have ruled that warrantless, suspicion-less searches of laptops and other digital devices can take place at U.S. border locations.

The issue of border searches is an important one for businesses because corporate travelers often carry laptops holding sensitive company data across U.S. borders.

Privacy advocates and travel groups have expressed concern that searches of such laptops could expose such sensitive corporate or customer information, especially citing the Department of Homeland Security's policy of copying or downloading the data if necessary.

The American Civil Liberties Union (ACLU) said that according to government documents it has obtained, U.S. customs officials searched electronic devices belonging to about 6,600 travelers between October 2008 and June 2010. The ACLU also said that U.S. officials confiscated more than 220 devices between October 2008 and June 2009.

The Ninth Circuit court ruled on an appeal filed by the government in a case against Howard Cotterman, who was charged with producing, shipping and transporting child pornography based on evidence gathered from his laptop computers.

Cotterman's laptops were seized at a border crossing in Lukeville, Ariz., upon his return to the country from a visit to Mexico. Custom officials decided to inspect Cotterman's computers because their computer systems showed he was a registered sex offender in California.

Officials found no incriminating data in an initial inspection of Cotterman's computers and a digital camera at the border. However, because many of the files on the computers were password protected, the agents decided to transport the systems to a digital forensics laboratory 170 miles away in Tucson.

Lab personnel copied all the content on Cotterman's hard drives and used forensic analysis tools to analyze it. The search of the drives yielded hundreds of images depicting child pornography, authorities said.

Cotterman was later arrested and indicted on several charges related to child pornography.



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