DIGITAL BORDER SEARCHES AFTER RILEY v. CALIFORNIA
Thomas Mann Miller(fn*)
Abstract: The federal government claims that the Fourth Amendment permits it to search digital information on cell phones, laptops, and other electronic devices at the international border without suspicion of criminal activity, much less a warrant. Until recently, federal courts have generally permitted these digital border searches, treating them no differently from searches of luggage. Courts that have limited digital border searches have required only that the government establish reasonable suspicion for the most exhaustive kind of digital search. The Supreme Court has not yet weighed in, but last year it held in Riley v. California that the search incident to arrest exception to the warrant requirement does not apply to cell phones. This Comment analyzes how Riley affects the border search doctrine and concludes that it should change the debate in significant ways. First, Riley establishes that digital searches are categorically different from physical searches. This undermines the first wave of border search decisions and suggests that courts will have to analyze digital searches differently. Second, the Court recognized that digital searches could be even more intrusive than the search of one's home. This finding weighs in favor of requiring at least reasonable suspicion, if not probable cause, for digital border searches. Third, the Court provides a test for determining when to deviate from the warrant requirement in light of new technology. The Court's analysis on this question supports reconsidering whether the border search exception-traditionally applied to searches of persons and physical property-should apply to searches of digital information.
INTRODUCTION
Despite a variety of important individual interests in digital information, U.S. border agents seize and search cell phones, laptop computers, and other electronic devices of people entering and exiting the country without any suspicion of criminal activity.(fn1) This is pursuant to official policy: U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) have each passed directives authorizing agents to conduct these digital border searches.(fn2) The government contends that this intrusive power is justified by a broad interest in enforcing the law at the border,(fn3) and argues in court that the practice is consistent with the Fourth Amendment's prohibition on unreasonable searches and seizures.(fn4)
The U.S. Supreme Court has not yet decided what level of process the Fourth Amendment requires for digital border searches, although it has set out general principles governing border searches.(fn5) The Court has held that border officials may conduct "routine" searches of persons and personal property at the border without suspicion of criminal activity or a warrant.(fn6) The Court has indicated that "nonroutine" searches may require a heightened standard of process.(fn7) For example, a search that is particularly destructive to personal property or highly intrusive to personal dignity may be nonroutine and require some level of suspicion.(fn8)
The lower federal courts have faced the difficult task of sorting out how to apply the Supreme Court's border search decisions-which involved searches of physical property and the temporary seizure of persons-to searches of digital information accessible through computers and cell phones. There are two main developments in the case law.(fn9) At first, most federal courts rejected challenges to digital border searches under the Fourth Amendment and, for the most part, concluded that border agents did not need any level of suspicion.(fn10)
More recent cases suggest the emergence of a second trend. In 2013, the Ninth Circuit held in United States v. Cotterman (fn11) that the Fourth Amendment requires border agents to show reasonable suspicion of criminal activity before conducting a "forensic" digital search of a computer that could reveal deleted files.(fn12) In doing so, the court narrowed its 2008 decision in United States v. Arnold,(fn13) in which it had held that no suspicion was required for any digital border search.(fn14) Nevertheless, the debate in both lines of cases is limited to whether border officials must meet the lowest level of process required under the Fourth Amendment-reasonable suspicion-before conducting digital border searches.(fn15)
The United States Supreme Court's decision in Riley v. California,(fn16) should spark a change in the doctrine in significant ways. In Riley, the Court declined to extend the search incident to arrest exception to cell phones and held that police officers must obtain a warrant before searching a cell phone incident to arrest.(fn17) The Court recognized that digital searches are categorically distinct from searches of physical objects.(fn18) The Court definitively rejected analogies between digital information accessible by cell phones and physical property(fn19)-one of the principal rationales underlying Arnold and other decisions holding that no suspicion is required for a digital border search.(fn20) This part of the Court's analysis should push lower courts to distinguish digital searches from searches of physical belongings.
The Court also established that digital searches can be more intrusive than even the search of one's home.(fn21) This weighs in favor of requiring at least reasonable suspicion, if not probable cause, for digital border searches. Finally, and perhaps most significantly, Riley provides a test for deciding whether to deviate from the Fourth Amendment's baseline warrant requirement in light of new technology.(fn22) The Court's analysis on this question supports reconsidering whether to apply the border search exception to digital searches.
While the scholarly debate largely reflects the pre-Riley debate analysis in the federal courts over reasonable suspicion,(fn23) this Comment examines the implications of Riley and its potential to change how courts assess the reasonableness of digital border searches.(fn24) In short, Riley supports a higher level of process for digital border searches than what courts currently require and impliedly settles the debate over reasonable suspicion for forensic searches. Further, Riley opens up a doctrinal path for courts to reconsider whether to extend the border search exception to the warrant requirement-traditionally applied to searches of persons and personal property-to searches of digital information. After Riley, courts should require, at a minimum, reasonable suspicion for all digital border searches and perhaps even a warrant supported by probable cause.
Indeed, lower courts are already grappling with differing interpretations of Riley in digital border search cases.(fn25) The Fourth Circuit may be the first federal court of appeals to take on the issue in light of these developments following an appeal filed in United States v. Saboonchi.(fn26) In that case, the defendant and amici argue on appeal that, under Riley, the Fourth Amendment requires border agents to obtain a warrant to conduct a digital border search or, at a minimum, establish reasonable suspicion.(fn27)
This Comment proceeds in three parts. Part I discusses the border search exception generally. Part II discusses digital border searches, focusing on the two major trends in the case law, including a split over whether a search of digital information should be treated differently from a search of physical items. Part III discusses Riley, its implications for other digital searches, and how courts have debated Riley 's impact on digital border searches thus far. Part III concludes with an analysis of what courts should take away from Riley when assessing the constitutionality of digital border searches.
I. BORDER SEARCHES
Every year, millions of people travel into and out of the United States with cell phones, tablets, laptops, digital cameras, and other electronic devices.(fn28) In 2013, 180 million people took international flights serving the United States.(fn29) A recent survey found that nearly all (ninety-four percent) of United States adult airline passengers brought at least one portable electronic device with them onto an aircraft while traveling in the past twelve months.(fn30) In 2014, 236 million people legally entered the United States from Canada and Mexico, traveling in personal vehicles (nearly 189 million), buses (over 5 million), and trains (nearly 295,000), as well as by foot (nearly 42 million).(fn31)
Almost all adults in the United States own cell phones. In 2012, ninety percent of American adults owned a cell phone.(fn32) An estimated eighty-five percent of Americans aged eighteen to twenty-four owned a smartphone in 2014.(fn33) Half of American adults owned either a tablet or an e-reader at the start of 2014.(fn34) Indeed, smartphones have "outpaced nearly any comparable technology in the leap to mainstream use."(fn35) As one court recently put it: "Smartphones, in particular, have become so deeply embedded in day-to-day activities that travelers cannot reasonably be expected to travel without them."(fn36)
Americans use personal electronic devices, and smartphones in particular, in personal ways. Smartphones invite users to share information in a variety of ways-from sending and receiving texts, email, and photos to making video calls, managing a calendar...
