All Watched Over by Machines of Loving Grace: Border Searches of Electronic Devices in the Digital Age

The border search exception to the Fourth Amendment has historically given the U.S. government the right to conduct suspicionless searches of the belongings of any individual crossing the border. The federal government relies on the border search exception to search and detain travelers’ electronic devices at the border without a warrant or individualized suspicion. The government’s justification for suspicionless searches of electronic devices under the traditional border search exception for travelers’ property has recently been called into question in a series of federal court decisions. In March 2013, the Ninth Circuit in United States v. Cotterman became the first federal circuit court to rule that a border search of an electronic device may require reasonable suspicion that its owner committed a crime due to the privacy impact of such a search. The following year, in Riley v. California (a nonborder search case), the U.S. Supreme Court explicitly endorsed the view that searches of cell phones implicate privacy concerns far beyond those implicated by searches of other physical items. Most recently, two divergent circuit court decisions, United States v. Kolsuz and United States v. Touset, lay bare the conflict in the federal circuit courts between a view that border searches of electronic devices are no different than those of other personal property and an emerging sense that digital border searches merit additional scrutiny due to their increased likelihood to harm travelers’ Fourth Amendment privacy interests. This Note proposes that courts should extend the logic of Riley to the border by treating searches of travelers’ electronic devices as distinctly more harmful to Fourth Amendment interests than searches of other types of property. This Note argues that border searches of electronic devices should be justified by a standard of at least reasonable suspicion in order to balance the necessity of border searches with the adverse impact on Fourth Amendment privacy concerns caused by extensive searches of travelers’ digital devices

Customs, Immigration, and Rights: Constitutional Limits on Electronic Border Searches

The warrantless search of travelers’ electronic devices as they enter and exit the United States is rapidly increasing. While the Supreme Court has long recognized a border-search exception to the Fourth Amendment’s warrant requirement, it applies to only two interests: promoting the duty regime and preventing contraband from entering the country; and ensuring that individuals are legally admitted. The government’s recent use of the exception goes substantially beyond these matters. U.S. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) are using it to search electronic devices, and at times the cloud, for evidence of any criminal activity, bypassing the warrant requirement altogether. Searches of these devices implicate privacy concerns well beyond those of the home, which has long been protected even for customs and immigration purposes. This Essay traces the evolution of the border exception, noting the effect of recent Supreme Court decisions, to argue that CBP and ICE are operating outside constitutional constraints. The Essay considers two objections grounded in the legitimate interests of CBP and ICE. It responds, first, that inspection of digital devices differs from the examination of a traveler’s purse or luggage: the level of intrusion and the amount of information obtained changes the quality of the search, triggering Fourth Amendment protections. Second, as an immigration matter, as soon as citizens are identified, absent probable cause, the government does not have the constitutional authority to search their devices at all. Foreigners lacking a substantial connection to the country, however, do not enjoy the same Fourth Amendment protections. It concludes by observing that because of the substance and complexity of the issue, Congress has an important role to play in determining what types of searches are justified

Border Searches of Electronic Devices

In fiscal year 2018, U.S. Customs and Border Protection (“CBP”) searched 33,295 electronic devices at the border without first needing a warrant. In fiscal year 2015, only about 8,500 electronic devices were searched at the border; in fiscal year 2016 that number rose to about 19,000; in fiscal year 2017 the number of devices searched increased again to over 30,000. The continued nontrivial increases in the number of electronic devices searched at the border, amounting to over 33,000 in fiscal year 2018, reveal that border searches of electronic devices are occurring more and more frequently with each passing year. The government is able to conduct these searches without obtaining warrants because, while the Fourth Amendment protects individuals’ “persons, houses, papers, and effects” from unreasonable searches and seizures, searches at the border have been exempt from Fourth Amendment protection. This exception is known doctrinally as the border search exception. The border search exception originally was designed to allow border agents to search travelers’ luggage for contraband and other harmful materials. However, with the progress of technology, the border search exception is now being exploited by border agents to conduct forensic searches of travelers’ electronic devices. Forensic searches are essentially “computer strip search[es],” wherein the government uses forensic software to access all active or readable files on the device, as well as password-protected data, hidden or encrypted data, deleted files, metadata, and unallocated file space. The smartphones, laptops, and tablets which accompany travelers to the border provide border agents unfettered access to vast quantities of personal information, without the protection of the Fourth Amendment. This Note first provides background on the Fourth Amendment and the border search exception. Second, this Note discusses the landmark cases Riley v. California and Carpenter v. United States to demonstrate how the Supreme Court has addressed digital data in the Fourth Amendment context. Third, this Note examines the circuit split between the Eleventh Circuit and the Fourth and Ninth Circuits regarding how electronic devices have been treated at the border. This Note then assesses the arguments for and against warrantless forensic searches of electronic devices at the border, and resolves the legal conflict in favor of greater privacy protections in electronic devices at the border

Chasing Bits Across Borders

As computer crime becomes more widespread, countries increasingly confront difficulties in securing evidence stored in electronic form outside of their borders. These difficulties have prompted two related responses. Some states have asserted a broad power to conduct remote cross-border searches - that is, to use computers within their territory to access and examine data physically stored outside of their territory. Other states have pressed for recognition of a remote cross-border search power in international fora, arguing that such a power is an essential weapon in efforts to combat computer crime. This Article explores these state responses and develops a framework for evaluating the legality of cross-border searches, both as a matter of international law and as a matter of U.S. law. The Article argues that remote cross-border searches are problematic as a matter of international law, and that U.S. adoption of bilateral or multilateral agreements authorizing remote-cross border searches on foreign law standards lower than those of the Fourth Amendment would be problematic as a matter of U.S. constitutional law. The Article also situates the remote cross-border search issue within the context of the larger theoretical debate over the power of geographically based sovereigns to exercise jurisdiction over internet activities. That debate ordinarily focuses on a sovereign\u27s jurisdiction to prescribe legal rules governing internet conduct; by broadening the inquiry to focus on a sovereign\u27s enforcement jurisdiction, a study of remote cross-border searches highlights certain normative bases for refining our understanding of how principles of territorial sovereignty apply in the internet context

Chasing Bits Across Borders

As computer crime becomes more widespread, countries increasingly confront difficulties in securing evidence stored in electronic form outside of their borders. These difficulties have prompted two related responses. Some states have asserted a broad power to conduct remote cross-border searches - that is, to use computers within their territory to access and examine data physically stored outside of their territory. Other states have pressed for recognition of a remote cross-border search power in international fora, arguing that such a power is an essential weapon in efforts to combat computer crime. This Article explores these state responses and develops a framework for evaluating the legality of cross-border searches, both as a matter of international law and as a matter of U.S. law. The Article argues that remote cross-border searches are problematic as a matter of international law, and that U.S. adoption of bilateral or multilateral agreements authorizing remote-cross border searches on foreign law standards lower than those of the Fourth Amendment would be problematic as a matter of U.S. constitutional law. The Article also situates the remote cross-border search issue within the context of the larger theoretical debate over the power of geographically based sovereigns to exercise jurisdiction over internet activities. That debate ordinarily focuses on a sovereign\u27s jurisdiction to prescribe legal rules governing internet conduct; by broadening the inquiry to focus on a sovereign\u27s enforcement jurisdiction, a study of remote cross-border searches highlights certain normative bases for refining our understanding of how principles of territorial sovereignty apply in the internet context

Laptop Searches at the United States Borders and the Border Search Exception to the Fourth Amendment

The border search exception to the Fourth Amendment allows broad discretion for United States customs officers to search the belongings of incoming and outgoing international passengers and their luggage. Although courts typically weigh the national security interest in the search against the privacy invasion caused by a potentially intrusive search,, most border searches are constitutional if they are either routine or preceded by reasonable suspicion. Border searches of passengers\u27 laptop computers, including hardware, software, and any external storage devices, pose a constitutional issue. This Note argues that laptop searches not preceded by reasonable suspicion are intrusive because the search may invade upon personal, proprietary, or confidential information that a passenger expects to be kept private, even at the border. Furthermore, this Note argues that even those laptop searches that are preceded by reasonable suspicion may not be constitutional, because border searches must be limited in scope to that which may either confirm or disprove the preceding suspicion

Border Searches for Investigatory Purposes: Implementing a Border Nexus Standard

Border searches are a commonly used exception to the Fourth Amendment’s probable cause and warrant requirements. Using a border search, the government can conduct searches of individuals without any kind of individualized suspicion. Border searches pose a concerning risk to privacy when they are used as a tool for criminal investigations. The Supreme Court has never ruled on searches used in this way, but lower courts are addressing the technique and reaching conflicting decisions. Courts need to take an approach that will protect the privacy interests of individuals while allowing the government to advance its interests in protecting its borders and fighting crime. Courts should adopt a border nexus standard: to be considered a border search, and therefore excepted from probable cause and warrant requirements, the search at a border must have a tie to the historic rationales of border searches or be investigating a transnational crime