Forensic Searches of Electronic Devices and the Border Search Exception: Movement Toward Requirement for Particularized Suspicion

Under current federal law, government agents at the national border have broad discretion to search a traveler seeking to enter or exit the United States. While these government agents would generally need a warrant to conduct the same search elsewhere, searches at the border do not require any degree of suspicion. The policy argument that protects this practice is national security, recognizing the border’s vulnerability to physical threats such as the transportation of contraband and dangerous weapons. Current federal policy, however, makes no distinction between the search of a traveler’s suitcase and the search of her smartphone. The Fourth and Eleventh Circuits have articulated different standards for border searches of electronic devices. This split of authority emphasizes the challenges in applying the border search doctrine in our modern world. Because a smartphone or computer is capable of storing a significant amount of highly sensitive information, forensic searches of these devices should be characterized as nonroutine. As such, the government should be required to demonstrate some level of individualized suspicion before subjecting a traveler to a forensic search of her device. Even though national security is a compelling policy argument, it no longer can serve as an absolute justification for any and all searches at the border. Imposition of a higher standard of suspicion would preserve the government’s ability to protect the borders while safeguarding the privacy interests of unsuspecting travelers