Legal Report November 2013
U.S. JUDICIAL DECISIONS
BORDER SECURITY. A federal appeals court has ruled that border agents must establish reasonable suspicion before conducting a forensic search of electronic devices seized at border crossings.
In 2007, Howard Cotterman and his wife were crossing the border into the United States from Mexico after a vacation. The inspection by a border patrol agent at the Lukeville, Arizona, port of entry returned a hit on the Treasury Enforcement Communication System (TECS). The system—an investigative tool of the Department of Homeland Security that tracks those entering or exiting the country who may be involved in crime—alerted that Cotterman was a sex offender and was suspected of being involved in child sex tourism.
Cotterman and his wife were moved to secondary inspection while their vehicle and belongings were searched. The agents recovered two laptop computers and three digital cameras.
In discussions with TECS operators as well as Immigration and Customs Enforcement agents, the border patrol learned that Cotterman was flagged as part of Operation Angel Watch, a program aimed at fighting child sex tourism by identifying sex offenders who regularly travel outside the United States. Agents were urged to review any computers, cameras, or other electronic devices. The review did not uncover any incriminating photos, but it did reveal password-protected files.
Agents traveled from Sells, Arizona, to help with the investigation. When talking with these agents, Cotterman offered to help the agents access the protected files.
The agents declined the offer, fearing that Cotterman could delete or corrupt the files. The agents allowed the Cottermans to leave but retained the laptops and cameras. These items were taken 170 miles to Tucson, Arizona, to be examined by computer forensics experts. The forensics examination uncovered 75 images of child pornography that Cotterman had previously erased from the laptop.
Agents contacted Cotterman and asked for his help with the password-protected files. Cotterman agreed to stop by the next day but never arrived. When contacted again, Cotterman said that the laptop had several users and he needed to get permission from these other people before assisting the agents. Cotterman fled to Mexico the next day and then flew to Sydney, Australia. Forensics experts eventually gained access to the password-protected files, which contained 378 graphic images of child pornography. From the images, it was clear that Cotterman was complicit in child abuse.
A grand jury indicted Cotterman on several counts related to child pornography. Attorneys for Cotterman moved to suppress the evidence gleaned from the laptop. Cotterman argued that the forensic examination of the laptop was an unreasonable search because the TECS hit and password-protected files did not give rise to reasonable suspicion of criminal activity.
The U.S. District Court for the District of Arizona agreed with Cotterman, granting the motion to suppress. The U.S. government appealed the decision. The U.S. Court of Appeals for the Ninth Circuit set out to determine what standard such border searches should be governed by; whether such searches require no suspicion (as with a general inspection performed at the border), reasonable suspicion, or probable cause. And, then the court would determine whether the laptop information could be entered into evidence against Cotterman.
Because of the wide-reaching privacy implications of searching digital devices, the court ruled that border agents must determine reasonable suspicion before searching digital devices, because they contain the most private and intimate details of a person’s life. In the opinion of the case, the court wrote: “This quality makes it impractical, if not impossible, for individuals to make meaningful decisions regarding what digital content to expose to the scrutiny that accompanies international travel. A person’s digital life ought not be hijacked simply by crossing a border.”
The court then ruled that the information presented to the border agents regarding Cotterman, including the sex offenders status, the TECS alert, and the Operation Angel Watch warning were sufficient to establish reasonable suspicion and allow the forensic search of Cotterman’s computer. (U.S. v. Cotterman, U.S. Court of Appeals for the Ninth Circuit, No. 09-10139, 2013.)
EMPLOYMENT. A federal appeals court has ruled that home health aides who deceived their employer about their intention to strike are not entitled to reinstatement to their original shifts and patients following the strike. The court ruled that the aides’ actions were “indefensible” and put their patients in imminent danger.
Special Touch Home Care Services subcontracts with nursing and healthcare facilities to provide home care for homebound patients who have an illness that prevents them from performing daily living activities. Home health aides are required to call an automated attendance system at the start of their shifts. The company then gets a report of the aides who have not called in. The company then calls the patients’ homes to verify whether the aide is there. This confirmation process takes approximately 20 minutes.
In 2004, the company had 2,500 aides on the payroll. Of these, 1,400 were assigned to specific clients. In May of that year, the union representing the aides notified the company of its intent to strike from June 7 to June 10. During the week before the strike, the company contacted the aides to confirm whether they planned to work during the strike. Approximately 75 aides anticipated being absent, either because of the strike or for other reasons. The company made arrangements to cover these shifts.
On the first day of the strike, 48 aides who had not previously notified the company they would be absent failed to report to work. Most of these aides spoke Spanish, making it difficult for the company to find replacements. Replacements could not be found for five of the aides.
After the strike was over, the 75 aides who had advised the company of their planned absence were reinstated immediately with their previously assigned patients. However, the 48 employees who failed to report to work without notifying the company were not reinstated immediately. Though ultimately reassigned, these 48 employees were not always given their prior patients or work schedules.
The union filed charges against the company with the National Labor Relations Board (NLRB). The union claimed that the company violated the National Labor Relations Act when it failed to immediately reinstate the 48 employees. The company claimed that, by failing to call in, the employees put the health and safety of their patients in jeopardy. The NLRB found in favor of the union, ruling that the company had general notice of the strike and that the failure of the 48 employees to come to work was protected under federal law.
The U.S. Court of Appeals for the Second Circuit overturned the NLRB’s decision, finding that the 48 aides who failed to come to work put their patients in imminent danger. The appeals court ruled that the company acted responsibly by working with aides in advance of the strike to ensure that all patients were cared for. In the written opinion of the case, the court wrote: “The burden on employees is minimal. It is simply not to mislead an employer about whether an employee plans to work when an unexpected absence will create a risk of harm to the employer’s plant, equipment, or patients.” (National Labor Relations Board v. Special Touch Home Care Services, Inc., U.S. Court of Appeals for the Second Circuit, No. 11-3147-ag, 2013)
U.S. CONGRESSIONAL LEGISLATION
INTELLIGENCE. A bill, H.R. 1542, introduced by Rep. Patrick Meehan (R-PA), that would facilitate information sharing on weapons of mass destruction, has been approved by the House of Representatives and is now pending in the Senate Homeland Security and Governmental Affairs Committee.
The bill, which is designed to prevent chemical, biological, radiological, and nuclear weapons from falling into the wrong hands, would require the Department of Homeland Security (DHS) to conduct an analysis of terrorist actors and any potential plans to launch attacks against the United States using such weapons. The DHS would then be required to coordinate with other agencies as well as state, local, and tribal authorities to share information.
Under the bill, DHS would be required to provide an annual report to Congress on its analysis of the threat of these weapons and the mechanisms established to enhance information sharing.
DISCRIMINATION. A bill (S. 815), introduced by Sen. Jeff Merkley (D-OR), that would make it illegal for employers to discriminate against employees based on actual or perceived sexual orientation has been approved by the Senate Health, Education, Labor, and Pensions Committee. It must now proceed to a vote before the full Senate.
The bill would not apply to religious organizations or the armed forces.
TRANSPORTATION SECURITY. A bill (H.R. 2719), introduced by Rep. Richard Hudson (R-SC), that would require the Transportation Security Administration (TSA) to take steps to improve its acquisition process of security technology has been approved by the House Homeland Security Committee’s Subcommittee on Transportation Security. The bill must now go to a vote before the full committee.
According to comments released by the House Homeland Security Committee, the “TSA has repeatedly purchased and deployed equipment that was not properly tested or failed to meet performance objectives.” H.R. 2719 is designed to help remedy this situation by requiring the TSA to develop a multiyear strategic plan for purchasing security equipment. The TSA would also have to conduct a cost-benefit analysis for purchases and create an inventory tracking system.
RESILIENCE. A bill, H.R. 2962, introduced by Rep. Donald M. Payne, Jr., (D-NJ) would require the government to launch a study into the resilience of the nation’s electrical grid. Introduced in response to the outages caused by Hurricane Sandy, the bill would require the National Research Council to work with the Department of Homeland Security and the Department of Energy to conduct the study. It would include a comprehensive assessment of actions needed to expand and strengthen the electrical grid to prepare for and recover from a natural disaster or cyberattack. The study would include the estimated cost to implement solutions and the time required to make the changes. An exploration of the barriers to implementing a smart grid, the study would also include suggested actions, priorities, incentives, and possible legislative actions.
The bill has 24 cosponsors and has been referred to the House Homeland Security Committee.
DOMESTIC VIOLENCE. A new law (formerly S.B. 2177), signed by Governor Chris Christie, will provide victims of domestic violence with up to 20 days of unpaid leave to seek medical attention, obtain help from victim’s services, get counseling or psychological help, participate in relocating, acquire legal assistance, or prepare for court. Employees must provide advance notice of leave when possible.
Employers that discriminate or retaliate against employees for exercising their rights under the act can be held liable. Employees may sue their employer and the state can levy fines of up to $5,000.
WEAPONS. The Illinois Legislature has overridden a veto by Governor Pat Quinn to enact a law (formerly H.B. 148) that would strengthen the right to carry a concealed weapon in the state. Under the law, companies that wish to prevent employees from carrying weapons at work must post a sign noting that concealed carry is prohibited. However, employers may not prevent employees who have a concealed carry permit from storing weapons in their cars on company property.
RETAIL THEFT. Florida Governor Rick Scott has signed a bill (formerly S.B. 1173) that will increase penalties for those convicted of retail theft. Under the new law, those who are found guilty of retail theft crimes of $50,000 or more will face a minimum sentence of 21 months in prison.
This column should not be construed as legal or legislative advice.