So, in my first post about the recent Ninth Circuit opinion U.S. v. Cotterman, I introduced the opinion’s idea of a “forensic computer search” and asked some questions about what that category might include, and whether it’s a coherent bar for a heightened level of Fourth Amendment privacy protection at the United States border.
This post is more of the “what have we learned?” side of the discussion. I think that the privacy problems identified in the opinion reveal one underlying idea:
Do you remember the computer interface of the future from Minority Report? (Here is a trailer if you haven’t seen it). It seems like we might not be too far from this becoming a reality. Last week, I watched a researcher search a map, play a platformer, and completely control a computer with his hands instead of a mouse. This was one of twenty cool exhibits at Techfest, an event where Microsoft Research demos some of their projects for the public (the event is also called “the & in R&D,” as its purpose is to facilitate the transition from pure research to development). Many of the demos were quite exciting, so I just wanted to share my thoughts about a small subset of the cool things I saw.
Last week, the Ninth Circuit released its decision in U.S. v. Cotterman, articulating a new and fascinating standard for border searches of electronic devices. An en banc majority held that government agents need “reasonable suspicion” to justify “forensic examination” of electronic devices at the border. The ruling has been characterized as a win for digital privacy rights – as a general rule, no suspicion whatsoever is required to search people and property at the border. This jump from “no suspicion required” to “reasonable suspicion required” limits when the government can do “forensic examinations,” and grants an exceptional level of protection to electronic devices.