71 Fla. L. Rev. F. 182 (2020)
View the article via pdf


ForumFourth Amendment


Searches of electronic devices at the border present a sui generis situation that distinguishes them from traditional border searches of other physical property, such as a backpack, car, or piece of luggage. The traditional border search doctrine framework has challenged federal courts with regard to how to categorize searches of electronic devices at the border. Traditionally, border searches are divided into one of two categories: “routine” or “non-routine.” Searches of electronic devices, however, do not fit neatly into either category. This is because they present privacy concerns that surpass those falling within the ambit of routine searches of property at the border. As a result, federal circuit courts are split as to what, if any, level of suspicion should be required for searches of electronic devices at the border. A common thread amongst these decisions, however, exsts in the circuit courts’ application of the U.S. Supreme Court’s analytical framework in Riley v. California. Though Riley did not involve a border search, it did involve the warrantless, forensic search of an individual’s cell phone. Notably, federal circuit courts have reached different conclusions in their shared application of the Riley Court’s reasoning to answer the question of what, if any, standard of suspicion should be applied to forensic searches of electronic devices at the border. Given the uniquely intimate nature of the information—as well as the breadth of storage capacity—contained in electronic devices, it seems unwise to presume that the balance of competing interests at the border (between individual privacy and national security) should be preemptively tipped in favor of the government as it currently is. This Note seeks to demonstrate why such a presumption is concerning, and advocates for a solution that realigns the compelling privacy interests that individuals have in their electronic devices with the Fourth Amendment protections traditionally afforded to them at the border.
Read More.