Breaking news late on a Friday afternoon, addressing both cybersecurity and homeland security/border issues. The Ninth Circuit sitting en banc has decided US v. Cotterman, a case involving the search of a computer laptop by DHS agents at the border. Traditionally, the law has been that searches at the border are plenary and require no suspicion at all — they are reasonable because they occur at the border and because a sovereign has control over goods and people who enter or exit its territory.Cotterman rejects that general rule. It concludes that given the comprehensive and intrusive nature of searches into the contents of laptops the government must articulate a “reasonable suspicion” before it may search the contents of a computer system. As I said, this will have significant implications for cybersecurity and for homeland security. I’ll have more to say about it after I’ve digested the 82-page opinion, but for those who are keeping track of these issues, this is a BIG loss for the government — the only other area of border search law I’m aware of where some form of suspicion is required are highly intrusive body cavity searches (yes, that means what you think it means).
I’ll offer one quick prediction — the US government will petition for certiorari to the Supreme Court.