If you’re returning to the United States through LAX or a California-Mexico checkpoint, you — and your laptop computer — have a lot more privacy than if you’re returning in other regions of the country.
Last week the Supreme Court refused to hear the appeal of Howard Cotterman, who challenged a search by border agents of the laptop he brought back to the U.S. from Mexico. Cotterman was indicted on child pornography charges after agents found what they said were illegal images on the computer.
The Supreme Court’s action was bad news for Cotterman but good news for other travelers who choose to reenter the U.S. in the Western states under the jurisdiction of the U.S. 9th Circuit Court of Appeals.
As The Times explained in a recent editorial, the 9th Circuit upheld the constitutionality of the sophisticated forensic analysis of Cotterman’s laptop. But in doing so, the appeals court held that such an intrusive search must be justified by “reasonable suspicion.” In Cotterman’s case, there was reasonable suspicion because he had been listed as a sex offender on a government watch list. Under the 9th Circuit’s decision, border agents can still subject your laptop to a cursory inspection without reasonable suspicion.
Still, the 9th Circuit decision is much more protective of privacy than a recent ruling by a federal judge in New York, who took the anything-goes approach that a border search is reasonable because of the “single fact that the person or item in question had entered into our country from outside.”
The significance of this case is huge. As 9th Circuit Judge M. Margaret McKeown pointed out in her majority opinion: “Every day more than a million people cross American borders, from the physical borders with Mexico and Canada to functional borders at airports such as Los Angeles (LAX), Honolulu (HNL), New York (JFK, LGA), and Chicago (ORD, MDW). As denizens of a digital world, they carry with them laptop computers, iPhones, iPads, iPods, Kindles, Nooks, Surfaces, tablets, BlackBerries, cellphones, digital cameras and more. These devices often contain private and sensitive information ranging from personal, financial and medical data to corporate trade secrets.”
That information is now safe from an invasive inspection by border agents — so long as you live in the right part of the country. Maybe someday the Supreme Court will confront the issue of laptop privacy directly and hand down a decision that applies not only to LAX but also to JFK and IAD.
Follow Michael McGough on Twitter @MichaelMcGough3