Electronic Searches at the Border: Reasonable Suspicion or None at All? The Circuit Split and Potential Impact on Higher Education.

• Author: Hart, Ashley Veronica

"It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology." (1)

1. Introduction

   In August 2019, U.S. Customs and Border Protection (CBP) detained Ismail Ajjawi, a seventeen-year-old incoming Harvard College student from Palestine, after he arrived in the United States at Boston's Logan Airport. (2) After hours of questioning and an extensive search of Ajjawi's cell phone and computer, CBP revoked Ajjawi's visa and denied him entry into the United States. (3) Harvard University, along with select advocacy groups, fought the visa denial on Ajjawi's behalf, and ten days later, the Department of Homeland Security (DHS) permitted Ajjawi to enter the United States. (4)

   Ajjawi's situation is not uncommon, as the search and seizure of electronic devices at U.S. borders has increased each year. (5) The rise in electronic border searches underscores the need for a definitive standard of suspicion to permit border agents to conduct these searches. (6) Without a clear standard, travelers' rights are at risk, and over one million international students in the United States risk being turned away at the border as they enter each year or return from school vacations. (7) This uncertainty not only jeopardizes international students' educational opportunities, but also threatens the higher education system's reliance on the income and diversity contributed by international students. (8)

   Individuals in the United States have an expectation of privacy against unreasonable searches and seizures by government officials. (9) This expectation is grounded in the Fourth Amendment, which protects against such intrusions. (10) Further, the Fourth Amendment requires law enforcement to obtain a search warrant based on probable cause as warrantless searches and seizures are per se unreasonable, subject to certain exceptions. (11)

   One of the earliest recognized exceptions to the Fourth Amendment's warrant requirement is the border search exception, which allows officers at the border, or "its functional equivalent," to conduct "reasonable" searches of persons and property without a warrant or probable cause. (12) The United States Supreme Court has consistently justified suspicionless and warrantless searches at the border by reasoning that the government has an interest in controlling "who and what may enter the country." (13) In Riley v. California, (14) the Court addressed the constitutionality of warrantless searches of electronic devices incident to a lawful arrest. (15) The Court, however, has not addressed the growing concern over suspicionless searches of electronic devices at the border, leading to the current circuit split and inconsistency in application of the exception. (16) The Fourth and Ninth Circuits both held that forensic searches of electronic devices at the border require some level of individualized suspicion, whereas the Eleventh Circuit held that no level of suspicion is required. (17) This inconsistent application of the border search exception could have a lasting impact on the diversity and financial well-being of the United States' higher education system. (18)

   This Note examines the border search exception to the Fourth Amendment, the circuit split regarding its applicability to the search and seizure of electronic devices, and the exception's potential impact on higher education in the United States. (19) Part II provides a brief history of the Fourth Amendment and its application to electronic searches as set out in Riley v. California, the historical context and an overview of the border search exception, an overview of the circuit split regarding the applicability of Riley to digital searches at the border, and a discussion of the role international students play in the U.S. higher education system. (20) Part III analyzes the impracticability of a strict application of Riley and argues that reasonable suspicion is the appropriate standard for electronic searches at the border. (21) Finally, Part IV recommends that the Court adopt the reasonable suspicion standard for forensic searches of electronic devices at the border to preserve travelers' rights to privacy as well as the financial well- being of the higher education system, while still protecting the heightened governmental interest at the border. (22)

2. History

   1. The Fourth Amendment Right to Privacy

      The Fourth Amendment provides that:

      The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (23) The Amendment does not establish a "general constitutional 'right to privacy,'" and as a result, determining when these protections apply causes constant litigation. (24) In his concurring opinion in Katz, Justice Harlan established the two-part test used to determine whether a government action constitutes a search that triggers Fourth Amendment protections. (25) This inquiry is both subjective and objective and is often referred to as the "reasonable expectation of privacy" test. (26)

      Under this test, the government action must invade an individual's privacy interest protected by the Fourth Amendment, and the individual must exhibit an "actual (subjective) expectation of privacy." (27) Next, the individual's expectation must be "one that society is prepared to recognize as 'reasonable.'" (28) If a court finds that a government action constituted a search--i.e., an invasion of an individual's "reasonable expectation of privacy"--then the court must determine whether the search or seizure was reasonable. (29)

      Generally, a search is reasonable if it is accompanied by a valid warrant supported by probable cause. (30) A search or seizure executed without a judicial warrant or showing of probable cause is per se unreasonable. (31) Additionally, courts often deem a search unreasonable when no "individualized suspicion of wrongdoing" exists. (32) Nevertheless, a search or seizure is reasonable absent a warrant if it falls within one of the well-established exceptions. (33)

      These exceptions to the warrant requirement apply to searches and seizures in situations where law enforcement has special needs, the individual has a diminished expectation of privacy, or where the search and seizure effectuates a minimal intrusion. (34) Because "the Fourth Amendment's ultimate touchstone is 'reasonableness,'" even the exceptions are based on reasonableness. (35) For a search or seizure conducted pursuant to an exception to be reasonable, the nature and degree of the intrusion must be balanced against "the importance of the governmental interests alleged to justify the intrusion." (36) Additionally, even in these limited circumstances, the Court generally requires that the search or seizure pursuant to the underlying exception is supported by probable cause, or at least reasonable suspicion, in order to permit the warrantless search or seizure that follows. (37) The border search exception, however, generally does not require any level of individualized suspicion for routine searches. (38)

   2. The Border Search Exception

      1. History of Border Search Exception

         The border search exception is one of the oldest recognized exceptions to the warrant requirement. (39) The same Congress that proposed the Bill of Rights-- including the Fourth Amendment--passed the Act of July 31, 1789 (Act). (40) The Act, the first customs statute in the United States, "granted customs officials 'full power and authority' to enter and search 'any ship or vessel, in which they shall have reason to suspect any goods, wares or merchandise subject to duty shall be concealed'" without a warrant or probable cause. (41) The Act distinguishes between searches at the border and searches in homes, buildings, or other dwelling places within the interior of the country. (42) This distinction highlights the border search exception's rationale, which is "grounded in the recognized right of the sovereign to control ... who and what may enter the country" and on the understanding that individuals have a diminished expectation of privacy at the border. (43) The Supreme Court has relied on the exception's "impressive historical pedigree" in continually upholding the constitutionality of warrantless searches at the border. (44)

         In the twentieth century, as Fourth Amendment jurisprudence continued to evolve, the border exception did as well. (45) The Court laid the initial groundwork for the modem border search exception doctrine in Carroll v. United States. (46) There, the Court distinguished between automobile searches at the U.S. border and those searches occurring within the United States. (47) The Court held that warrantless searches of vehicles within the border are permitted as long as they are supported by probable cause. (48) In coming to its decision, the Court used the border search exception as a point of comparison stating, "[travelers may be so stopped in crossing an international boundary because of national self- protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in." (49) This language laid the groundwork for the modem border search exception. (50)

         Following Carroll, the Supreme Court specifically addressed the border search exception in three seminal cases: United States v. Ramsey, United States v. Montoya de Hernandez, and United States v. Flores-Montano. (51) While the Court mentioned the border search exception in previous cases, Ramsey is the first case in which the Court expressly ruled on the exception. (52) In Ramsey, customs officials invoked the border search exception to conduct a warrantless search of...