Abstract

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.

Keywords

Warrantless search, Border search exception, Fourth amendment, Privacy law, Electronic privacy, Electronic device search, Riley v. California 573 U.S. 373 (2014), Carpenter v. United States 138 S. Ct. 2206 (2018), Forensic search