This presentation will examine the current laws regarding the search of computers and other electronics at the border of the United States. Officials have relied on the border search exception to search, review, copy, and detain cell phones, computers, and other electronic devices without a warrant, probable cause, or any suspicion. Border searches are an exception to the Fourth Amendment’s warrant requirement. Using this exception, the Department of Homeland Security (DHS) has singled out individuals reentering the United States at the border to conduct searches without suspicion or a warrant. During these suspicionless and warrantless searches, DHS has detained and questioned individuals for hours, seized and searched electronic devices, and photocopied credit cards and notes. For the most part, the exception remains broad and undeveloped despite the changes in travel and technology since the passage of the Fourth Amendment in 1789, when Congress, only a month later, passed the law (still in effect today) permitting border officials to conduct warrantless searches, and 1977, when the Supreme Court expanded the doctrine. In early 2013, the Ninth Circuit reviewed the issue of whether officials needed suspicion to search at the border, and unlike previous courts, held reasonable suspicion is needed to conduct a forensic examination of electronic storage devices when entering the United States. This standard is currently the most protective in the United States. This presentation will delve into the rationales behind the U.S. border search exception, discuss the broader implications of the recent Ninth Circuit decision, and explore some dos and don'ts if a traveler's electronic devices are seized and searched at the border.
Whitney Merrill is a third-year law student at the University of Illinois College of Law focusing on the legal issues surrounding the Internet, technology, and cyber security. Currently, she serves as the Managing Editor of the University of Illinois Law Review, and previously interned for the Electronic Frontier Foundation.