Electronic Border Searches after Riley

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Aaron Bode

EXECUTIVE SUMMARY

The border search doctrine authorizes U.S. customs officers to conduct warrantless, suspicion-less searches of persons and property crossing the U.S. border.[1] Since the Supreme Court’s 2014 decision in Riley v. California, arguments that electronic devices and their accompanying data qualify as a different type of property that should be protected from general searches at the border have grown.[2] This thesis examines whether, in the aftermath of Riley’s declaration of special categorical protection for electronic devices in the interior, general searches of electronic devices at the border are Constitutional. An analysis of decisions by lower courts that confronted the electronic border search question since Riley finds that some reject equating electronic devices to other physical containers crossing the border and that such searches are only reasonable “if relevant government interests are present.”[3] Other courts have gone further and significantly narrowed customs officers’ authority to conduct electronic border searches.[4] Still others, however, have, in light of the historic breadth of the government’s authority to search people and property at the Nation’s borders, found Riley irrelevant.[5] The result is significant divergence in opinion within the U.S. judiciary as to the reasonableness of the government’s conduct of electronic border searches, including their proper scope and manner. In answering this question, this thesis finds that unique aspects of the Riley decision itself, its context, and circumstances demand a narrow, vice broad, application of its holding. Furthermore, this thesis explains that given their provenance and abundant statutory support, border searches, including those of electronic devices and data, are an exemption to the Fourth Amendment, not an exception like the searches at issue in Riley. As a result, despite the fervor created by Riley, electronic border searches continue to be a Constitutionally reasonable exercise of the broad authority vested in customs officers over all that enters and exits the country.

This thesis also addresses a second question: how can the reasonableness of electronic border searches be maintained in the face of evolving technology and concomitant privacy concerns that troubled the Riley Court? To answer this question, a view of electronic devices and their stored data as a hybrid form of property is presented. This perspective recognizes the duality of electronic devices—as both containers and novel effects—where powerful government and individual privacy interests collide. In discussing this perspective, this thesis details other constitutionally sanctioned approaches that balances these competing interests when new technology and new threats emerge. In addition to an examination of the border search doctrine itself and a discussion as to how electronic devices should be treated under the doctrine moving forward, this thesis reviews other existing U.S. statutory regimes specifically developed for governing government access to information in which people have significant privacy expectations. The resulting deductive and inductive analysis details how the hybrid view empowers the government to counter novel threats at the border while protecting privacy in data that does not pertain to the government’s broad rationale for conducting suspicion-less border searches. In presenting the hybrid model for electronic devices at the border, its advantages, including its maintenance of technological and mode neutrality in border searches of all property as well its ability to adapt to changing privacy attitudes, are discussed.[6]

Building on this hybrid view of electronic devices at the border, this thesis outlines a hybrid-scope-limited approach for electronic border searches. This approach tethers suspicion-less electronic border searches to the original rationale underlying the border search doctrine which encompass the following areas:

  • national security,
  • the collection of duty and regulation of trade,
  • preventing the introduction of harmful goods, and
  • regulating immigration to prevent the entry of illegal, inadmissible, or unwanted persons.

A two-tiered framework for the implementation of this approach is then introduced in which distinct levels of government intrusion into electronic devices at the border are tied to differential levels of suspicion. Within this discussion, this thesis examines the reasonableness of such searches using forensic tools that allow for a search of all data present on an electronic device, including that which has been deleted and that which is opaque to the user. In addition, it presents an analysis as to why reasonable suspicion, following the accepted definition of that term from the Supreme Court’s decision in the Terry v. Ohio, should be the standard for electronic border searches of increased scope and manner—so-called second-tier searches.[7] Ultimately, this thesis advances a tiered, hybrid-scope-limited rule that adheres to the long-established border dynamic where the government’s authority is at its “zenith” and an individual’s right to privacy is greatly diminished.[8] This construct provides guidance to customs officers for dealing with the unique issues involved in conducting electronic border searches. In doing so, it allows for the maintenance of reasonableness, now and in the future, in the depth, breadth, and manner of customs officers’ intrusions into digital property at the border.

[1] United States v. Ramsey, 431 U.S. 606 (1977).

[2] Laura K. Donohue, “Customs, Immigration, and Rights: Constitutional Limits on Electronic Border Searches,” Yale Law Journal Forum 128 (2019): 961–1015, https://www.yalelawjournal.org/‌forum/‌customs-immigration-and-rights; Thomas Mann Miller, “Digital Border Searches after Riley v. California,” Washington Law Review 90, no. 4 (2015): 1943–96.

[3] United States v. Kolsuz, 890 F.3d 133, 142, 145–46 (4th Cir. 2018).

[4] United States v. Cano, 934 F.3d 1002 (9th Cir. 2019); Alasaad v. McAleenan, No. 17-cv-11730-DJC (D. Mass. Nov. 12, 2019).

[5] United States v. Vergara, 884 F.3d 1309 (11th Cir. 2018); United States v. Touset, 890 F.3d 1227 (11th Cir. 2018).

[6] See Orin S. Kerr, “Applying the Fourth Amendment to the Internet: A General Approach,” Stanford Law Review 62, no. 4 (2010): 1005–49; Richard McAdams, “Riley’s Less Obvious Tradeoff: Forgoing Scope-Limited Searches,” Texas Tech Law Review 48 (2015): 97–131; Thomas K. Clancy, “Fourth Amendment Satisfaction—The ‘Reasonableness’ of Digital Searches,” Texas Tech Law Review 48 (2015): 37–63; and Ramsey, 431 U.S. 606.

[7] Terry v. Ohio, 392 U.S. 1 (1968).

[8] United States v. Flores-Montano, 541 U.S. 149 (2004).

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