FORENSIC BORDER SEARCHES AFTER CARPENTER REQUIRE PROBABLE CAUSE AND A WARRANT.

• Author: Pryby, Christopher I.

Under the border search doctrine, courts have upheld the federal government's practice of searching people and their possessions upon entry into or exit from the United States, without any requirement of suspicion, as reasonable under the Fourth Amendment. Since the advent of electronic devices with large storage capacities, courts have grappled with whether this definition of reasonableness continues to apply. So far, courts have consistently characterized "nonforensic" border inspections of electronic devices (for example, paging through photos on a phone) as "routine" searches that, like inspecting luggage brought across international lines, require no suspicion. But there is a circuit split over what suspicion the government needs to conduct "forensic" searches that copy data for later inspection. This Note argues that the recent Supreme Court decision in Carpenter v. United States recognized a new balance of privacy rights at the border. Starting in United States v. Jones and continuing through Riley v. California and Carpenter, the Court has developed a theory of data privacy aimed at forestalling the government's creation of a high-tech panopticon. This new theory, in the context of electronic searches at the border, requires that the balance of government and individual interests be struck in favor of the individual. Probable cause and a warrant, not merely reasonable suspicion, are necessary for a forensic search.

TABLE OF CONTENTS INTRODUCTION I. The Border Search Exception A. Doctrinal Origins B. Classifications of Border Searches II. Electronic Privacy and Conflict with the Border Search Exception A. Applying the Doctrine to Electronic Devices B. Digital Privacy Trumps a Longstanding Warrant Exception C. The Circuits Split over Riley III. The Case for Probable Cause and a Warrant A. The Courts Are Right to Decide This Question B. Jones, Riley, and Carpenter Recognize Strong Fourth Amendment Privacy Interests in Data C. Requiring Probable Cause and a Warrant Correctly Balances Interests in Light of Jones, Riley, and Carpenter D. Why Not Require Probable Cause for Other Intrusive Border Searches? CONCLUSION INTRODUCTION

Pascal, a dual citizen of the United States and France, is a doctoral student in Islamic studies at a Canadian university. He is riding an Amtrak train from Montreal to New York when Customs and Border Protection (CBP) agents board the train at the U.S.-Canada border. During questioning, Pascal admits that he has lived in Jordan and visited Lebanon in the past year. The agents order him to bring his luggage to the dining car for inspection and to unlock his laptop. While inspecting files on his computer, they see images of Hezbollah and Hamas rallies. Unsatisfied with Pascal's explanation that he observed the rallies as research for his dissertation, the agents confiscate his laptop and other electronics for further search. The agents release him later that day and return his cell phones and camera, but they send his laptop and external hard drive to Immigration and Customs Enforcement (ICE). Pascal receives those items by mail eleven days later. He is never charged with a crime, but it is clear that, at a minimum, agents have viewed files including personal photographs, messages with his girlfriend, and emails. It is possible they logged into his social networking accounts too. He further suspects that ICE has retained copies of the data from his devices.

This is not a contrived hypothetical. The facts above come from a real case: Abidor v. Napolitano. (1) Travelers are accustomed to certain invasions of physical privacy as part of the norms of the exercise--it is the price of keeping would-be terrorists off planes. For international travelers, a customs inspection is also possible--and about as welcome as a jury summons. But many Americans do not realize the extent to which the government asserts authority to inspect anything entering or leaving the country. (2) The border search doctrine has traditionally required no suspicion at all for government agents to search anything at the border, (3) and courts have only recently begun to consider whether this ability to search "anything" should include the contents of travelers' phones, cameras, and laptops.

This issue deserves close scrutiny. First, troublingly expansive interpretations of the border search doctrine are not confined to a single political party or ideology. In fact, although generally considered friendlier to civil rights than the Trump Administration, (4) the Obama Administration claimed the power to conduct the search at issue in Abidor. Second, there is a circuit split on the issue. Although federal courts of appeals have unanimously held that no suspicion is needed if agents merely look at files on electronic devices at the border, they are divided on whether agents need some amount of suspicion to copy the contents of those devices for later review (a "forensic search"). Third, a recent line of Supreme Court cases on Fourth Amendment rights, most recently Carpenter v. United States, (5) has endorsed reasoning that compels a reexamination of the border search doctrine's applicability to electronic data.

This Note argues that reasonable suspicion is not enough. Specifically, courts should require the government to develop probable cause that a device contains evidence of a crime before it conducts a forensic border search on that device. Part I reviews the border search doctrine's history and its traditional bifurcation between "routine" and "nonroutine" searches. Part II examines how the doctrine has come into conflict with separate precedent governing electronic data privacy. In particular, it explores the circuit split--between the Fourth and Ninth Circuits on the one hand and the Eleventh Circuit on the other--and these courts' attempts to reconcile the historical border search exception with recent Supreme Court decisions. Finally, Part III contends that the balance of government and individual interests, viewed through the lens of Supreme Court data privacy precedent, requires probable cause and a warrant for a forensic border search.

1. THE BORDER SEARCH EXCEPTION

   The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects [] against unreasonable searches and seizures." (6) But unlike searches in the interior of the country, border searches have never required probable cause. (7) This Part describes the origins and traditional operation of the border search doctrine. Section I.A focuses on three primary justifications for suspicionless border searches: the history of the practice, original understandings of what constitutes a reasonable search, and the balance of government and individual interests. Section I.B discusses the distinction between routine and nonroutine border searches and the level of suspicion courts have required for each.

   1. Doctrinal Origins

      The border search exception to the general warrant and probable cause requirements "has a history as old as the Fourth Amendment itself." (8) The Constitution grants Congress "broad, comprehensive powers '[t]o regulate Commerce with foreign Nations,'" (9) including the ability to exclude aliens and property and to interdict smuggling. (10) In fact, from the Founding, customs officials routinely inspected imports to assess duties and seize contraband. (11) And the Supreme Court has recognized a "longstanding right of the sovereign to protect itself' by inspecting persons and items entering the country. (12) Moreover, the Court has stressed that the border search exception does not result from "exigent circumstances," like some exceptions to the warrant requirement, but is instead founded on a "historically recognized exception" to the warrant requirement, much like the rule permitting a search incident to a lawful arrest. (13)

      The Court has also marshalled an original-understanding argument to justify the border search exception. The first Congress, the same that drafted the Bill of Rights, enacted a law authorizing customs officials "on suspicion of fraud, to open and examine ... any package or packages" and to board and search "any ship or vessel [] in which they shall have reason to suspect any goods ... subject to duty shall be concealed" and seize any contraband found. (14) Because that same Congress drafted the Fourth Amendment, the Court has inferred that "reasonable searches and seizures" must encompass the border searches authorized in that statute. Therefore, says the Court, modern-day border searches are likewise reasonable. (15)

      Besides looking to historical understandings of reasonableness, the Court also determines whether a category of searches is reasonable by "balancing the [government's] need to search against the [personal] invasion which the search entails." (16) This kind of interest balancing justifies the border search exception. The Court has consistently recognized that "[t]he Government's interest in preventing the entry of unwanted persons and effects is at its zenith at the international border" (17)--this interest is so powerful that border searches "are reasonable simply by virtue of the fact that they occur at the border." (18) Additionally, the Court has held that individuals generally enjoy a diminished expectation of privacy in such circumstances. (19)

   2. Classifications of Border Searches

      The border search exception to the probable cause and warrant requirements is firmly entrenched in Fourth Amendment doctrine. (20) Yet there are still constitutional limits on searches at the border. This Section will examine two categories of traditional, nonelectronic border searches--routine and nonroutine searches--and the requirements courts have imposed on them.

      In general, "[r]outine searches of the persons and effects of entrants" into the country "are not subject to any requirement of reasonable suspicion, probable cause, or warrant." (21) Routine searches...