Customs, Immigration, and Rights: Constitutional Limits on Electronic Border Searches

The warrantless search of travelers’ electronic devices as they enter and exit the United States is rapidly increasing. While the Supreme Court has long recognized a border-search exception to the Fourth Amendment’s warrant requirement, it applies to only two interests: promoting the duty regime and preventing contraband from entering the country; and ensuring that individuals are legally admitted. The government’s recent use of the exception goes substantially beyond these matters. U.S. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) are using it to search electronic devices, and at times the cloud, for evidence of any criminal activity, bypassing the warrant requirement altogether. Searches of these devices implicate privacy concerns well beyond those of the home, which has long been protected even for customs and immigration purposes. This Essay traces the evolution of the border exception, noting the effect of recent Supreme Court decisions, to argue that CBP and ICE are operating outside constitutional constraints. The Essay considers two objections grounded in the legitimate interests of CBP and ICE. It responds, first, that inspection of digital devices differs from the examination of a traveler’s purse or luggage: the level of intrusion and the amount of information obtained changes the quality of the search, triggering Fourth Amendment protections. Second, as an immigration matter, as soon as citizens are identified, absent probable cause, the government does not have the constitutional authority to search their devices at all. Foreigners lacking a substantial connection to the country, however, do not enjoy the same Fourth Amendment protections. It concludes by observing that because of the substance and complexity of the issue, Congress has an important role to play in determining what types of searches are justified