BORDER SEARCHES OF ELECTRONIC DEVICES.

• Author: Rowland, Rebecca M.

INTRODUCTION

In fiscal year 2018, U.S. Customs and Border Protection ("CBP") searched 33,295 electronic devices at the border without first needing a warrant. (1) 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. (2) 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, (3) searches at the border have been exempt from Fourth Amendment protection. This exception is known doctrinally as the border search exception. (4) The border search exception originally was designed to allow border agents to search travelers' luggage for contraband and other harmful materials. (5) 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. (6) Forensic searches are essentially "computer strip search[es]," (7) 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. (8) 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. (9)

The Supreme Court has not ruled on how to treat forensic searches of electronic devices at the border, leaving circuit courts to grapple with the question. (10) The Eleventh Circuit held that the border search exception squarely applies to electronic devices, awarding no more privacy protections to smartphones or laptops than is given to suitcases and backpacks at the border. (11) The Fourth and Ninth Circuits held that the privacy interests implicated in electronic devices outweigh the governmental interests in border security, therefore border agents must possess "reasonable suspicion" of criminal activity before conducting a forensic search of an electronic device. (12) No circuit court has held that border agents need a warrant to forensically search an electronic device. The splintering among circuits is caused by the collision of two important policy interests, privacy rights and border security, leaving the law in chaos. (13)

While the Supreme Court has not weighed in on the treatment of electronic devices at the border, in recent cases that did not take place at the border, the Supreme Court has carved out protections in Fourth Amendment doctrine for searches of digital data. These cases offer guidance as to how the privacy interests in digital data and electronic devices should be understood when balanced against the governmental interests at the border. (14)

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.

Because searches of electronic devices implicate serious privacy interests, because travelers cannot mitigate the risk to their privacy at the border, and because a higher standard does not significantly hinder the governmental interests present at the border, border agents should be required to obtain a warrant before searching electronic devices. Short of a warrant, border agents, at a minimum, should be required to possess reasonable suspicion before searching electronic devices.

1. THE BORDER SEARCH EXCEPTION TO THE FOURTH AMENDMENT

   The Fourth Amendment protects "persons, houses, papers, and effects" from unreasonable searches and seizures. (15) To conduct a search or seizure within the scope of Fourth Amendment protection, the government must first show probable cause and obtain a warrant. (16) The purpose of the Fourth Amendment "is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials." (17)

   At the same time, the Supreme Court has recognized a longstanding exception to the Fourth Amendment for searches conducted at the border. (18) The border search exception originates from the "longstanding right of the sovereign to protect itself' from harm caused by people and property crossing the border. (19) The exception stems from the governmental interest in preventing "unwanted persons and effects," (20) including contraband, communicable disease, narcotics, explosives, and other threats to national security, from crossing the border. (21) Nevertheless, even at the border, courts have rejected an "anything goes" approach. (22) The Supreme Court has distinguished between two types of searches--routine and nonroutine--which places limits on border agents' ability to conduct searches in certain circumstances. (23)

   For routine searches at the border, border agents do not need any reason to search persons and property entering or exiting the country. (24) Routine searches at the border are considered per se reasonable. (25) The governmental interests at the border, such as national security and the sovereign's interest in preventing contraband from entering the country, make routine searches reasonable by virtue of being at the border. (26) Examples of routine searches include straightforward searches such as looking in "suitcases, wallets, purses, or overcoats," (27) as well as more involved searches such as disassembling a vehicle's gas tank, (28) pat down searches, (29) close-up sniffing by a trained narcotics-detection dog, (30) x-raying and drilling holes in luggage, (31) looking through photo albums or video tapes, (32) and even manual (non-forensic) reviews of cell phone or computer contents. (33)

   In contrast to routine searches, nonroutine searches require that border agents meet a higher standard of reasonableness, thereby narrowing the border search exception. (34) Nonroutine border searches are only reasonable if they are based on "reasonable suspicion." (35) The Supreme Court has identified three types of nonroutine searches: "highly intrusive searches of the person," destructive searches of property, and searches conducted in a "particularly offensive" or overly intrusive manner. (36) In practice, nonroutine searches consist of searches such as "strip searches, body cavity searches, searches that destroy property, and prolonged detentions of individuals." (37) It is within the third category, overly intrusive searches, that some courts have found forensic searches of electronic devices to be nonroutine. (38)

   The Supreme Court defines reasonable suspicion as "a particularized and objective basis for suspecting the particular person stopped of criminal activity" determined in light of the "totality of the circumstances." (39) The law measures intrusiveness by how deeply a search implicates a person's privacy and dignity interests. (40) Yet, the Supreme Court has not articulated a clear test for what makes a border search reasonable or unreasonable, and instead employs a case-by-case analysis. (41) Nevertheless, the fact that the Supreme Court acknowledges that certain searches at the border require an objective basis of reasonableness demonstrates that the law could develop to pay heed to the privacy interests of the digital age.

2. THE SUPREME COURT'S TREATMENT OF SEARCHES INVOLVING DIGITAL DATA

   In cases away from the border, the Supreme Court has confronted how searching electronic devices maps onto existing Fourth Amendment doctrine. Understanding how the Supreme Court treats searches of electronic devices away from the border provides guidance as to how they should be treated at the border.

   1. Riley v. California

      The landmark case Riley v. California significantly influenced the treatment of cell phones and electronic devices in Fourth Amendment doctrine. (42) Riley involved a warrantless search of data stored on a cell phone when the phone was found on the defendant at the time of arrest. (43) The lower court held that searching the defendant's phone without a warrant was reasonable because it was a search incident to an arrest, which places the search within the purview of the incident to arrest exception to the Fourth Amendment. (44) The policy reason for this exception stems from the governmental interests in protecting officers' safety (in case the individual arrested has weapons on his person) and in preventing the destruction of evidence (in case the arrested individual tries to destroy evidence on his person). (45)

      However, the Supreme Court unanimously reversed, holding that a warrantless search of a cell phone searched incident to an arrest is unconstitutional because the policy reasons which gave rise to the incident to arrest exception are not present when the search is of a cell phone or consists of digital data. (46)

      Furthermore, the Court articulated that searching cell phones is categorically different in both "a quantitative and a qualitative sense" (47) from more traditional searches. Cell phones are quantitatively different because they allow large quantities of personal...