All Watched over by Machines of Loving Grace: Border Searches of Electronic Devices in the Digital Age

By Sean O’Grady

The border search exception to the Fourth Amendment has historically given the U.S. government the right to conduct suspicionless searches of the belongings of any individual crossing the border. The federal government relies on the border search exception to search and detain travelers’ electronic devices at the border without a warrant or individualized suspicion.

The government’s justification for suspicionless searches of electronic devices under the traditional border search exception for travelers’ property has recently been called into question in a series of federal court decisions. In March 2013, the Ninth Circuit in United States v. Cotterman became the first federal circuit court to rule that a border search of an electronic device may require reasonable suspicion that its owner committed a crime due to the privacy impact of such a search. The following year, in Riley v. California (a nonborder search case), the U.S. Supreme Court explicitly endorsed the view that searches of cell phones implicate privacy concerns far beyond those implicated by searches of other physical items. Most recently, two divergent circuit court decisions, United States v. Kolsuz and United States v. Touset, lay bare the conflict in the federal circuit courts between a view that border searches of electronic devices are no different than those of other personal property and an emerging sense that digital border searches merit additional scrutiny due to their increased likelihood to harm travelers’ Fourth Amendment privacy interests.

This Note proposes that courts should extend the logic of Riley to the border by treating searches of travelers’ electronic devices as distinctly more harmful to Fourth Amendment interests than searches of other types of property. This Note argues that border searches of electronic devices should be justified by a standard of at least reasonable suspicion in order to balance the necessity of border searches with the adverse impact on Fourth Amendment privacy concerns caused by extensive searches of travelers’ digital devices.