Border Searches, National Security, and the Reasonable Expectation of Digital Privacy

Criminal Law & Procedure Practice Group Teleforum

In United States v. Cotterman, the Ninth Circuit held en banc that government officials must have "reasonable suspicion" before conducting forensic searches of laptops at the U.S. border. The court's ruling is a dramatic departure from the general rule permitting suspicionless border searches in the interests of national security. Is the Ninth Circuit correct that computer searches should be held to heightened scrutiny because they "implicate substantial personal privacy interests?” Is it true that "[a] person's digital life ought not be hijacked simply by crossing a border?” Or does the Cotterman decision pose a threat to effective protection of the nation from harm? Was Judge Consuelo M. Callahan correct in her partial dissent that "a port of entry is not a traveler’s home ... even if a traveler chooses to carry a home’s worth of personal information across it?” Our experts will debate these questions, and more.

Featuring:

• Brian Hauss, Legal Fellow, ACLU Speech, Privacy and Technology Project
• Andrew J.P. Levy, Former Deputy General Counsel, Department of Homeland Security

In United States v. Cotterman, the Ninth Circuit held en banc that government officials must have "reasonable suspicion" before conducting forensic searches of laptops at the U.S. border. The court's ruling is a dramatic departure from the general rule permitting suspicionless border searches in the interests of national security. Is the Ninth Circuit correct that computer searches should be held to heightened scrutiny because they "implicate substantial personal privacy interests?” Is it true that "[a] person's digital life ought not be hijacked simply by crossing a border?” Or does the Cotterman decision pose a threat to effective protection of the nation from harm? Was Judge Consuelo M. Callahan correct in her partial dissent that "a port of entry is not a traveler’s home ... even if a traveler chooses to carry a home’s worth of personal information across it?” Our experts will debate these questions, and more.

Featuring:

• Brian Hauss, Legal Fellow, ACLU Speech, Privacy and Technology Project
• Andrew J.P. Levy, Former Deputy General Counsel, Department of Homeland Security

Call begins at 2:00 p.m. Eastern Time.

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