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Hastings Constitutional Law Quarterly

Authors

Eunice Park

Abstract

Since the Supreme Court handed down Riley v. California in 2014, we have been assured that if we are pulled over for speeding, an officer may not search our cell phone without a warrant. Another potential privacy peril, however, continues to loom: The international border. As the law currently stands, law enforcement agents may search our electronic devices, including cell phones and laptops, without any particularized suspicion, as we attempt to return into the United States from our trip abroad. Is this consistent with Riley? With the Fourth Amendment?

The wide latitude courts have given government agents to conduct border searches has had a wrinkle, however, since United States v. Cotterman. The en banc Ninth Circuit deemed a forensic probe into the defendant's laptop "essentially a computer strip search" and held that agents must have "reasonable suspicion" before they can conduct a forensic examination to unlock passwordprotected private data held within digital devices. The petition for writ of certiorari to have Cotterman heard along with the Riley v. California in 2014 was denied. Nonetheless, Cotterman continues to raise the unanswerable question: Under what analysis is a laptop border search routine or nonroutine?

This Article proposes a bright-line rule for border searches of laptops and other digital devices that explains the problematic nature of and obviates the routine/non-routine dichotomy. All digital border searches, including laptops, should be subject to a reasonable suspicion standard without reference to whether the search is "routine" or "nonroutine." This minimal requirement confirms that, at the border, not "anything goes." At the same time, in law enforcement's favor, this Article proposes that the "border search" should include outbound, as well as inbound travelers, and should not be limited to imminent or ongoing crime because the spatio-temporal irrelevance of digital technology makes the concepts of ingress versus egress, and immediate versus prospective illegal activity, inapplicable.

This issue of the expectation of privacy at the border for digital device searches, as well as other cases testing the government's limits on official snooping via drones, GPS trackers, cell phones, and genetic profiling is certain to re-emerge before the U.S. Supreme Court, at a time when we face threats from terrorists and xenophobes alike.

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