I. Introduction
International travelers to the United States, including lawyers charged with maintaining the confidentiality of client information, need to think twice about traveling with portable electronic devices that contain sensitive information. (1) Travelers entering the United States may believe that border officials need a valid reason to search their electronic devices, (2) but unfortunately for them, this belief is incorrect. (3) One's level of protection against unreasonable searches of electronic devices by border officials depends entirely on which part of the country they seek to enter. (4)
In Alasaad v. Mayorkas, the First Circuit held that basic searches of electronic devices in border zones, without a warrant or even reasonable suspicion of criminal activity, do not violate the Fourth Amendment protection against unreasonable searches and seizures. (5) Furthermore, the court held that, while officers must have reasonable suspicion to conduct advanced searches of electronics, border searches of electronic devices do not have to be limited in scope to searches for contraband. (6) The Fourth Circuit ruled similarly in United States v. Kolsuz, holding that a forensic search of a smartphone is a nonroutine, advanced search and that these searches require reasonable suspicion of criminal activity. (7) Conversely, in United States v. Touset, the Eleventh Circuit held that customs agents do not need any level of suspicion to conduct a search of one's electronic devices in border zones. (8) Furthermore, in United States v. Cano, the Ninth Circuit held that warrantless searches of electronics must be limited in scope to searches for digital contraband. (9) The lack of agreement among circuits, and lack of clear direction from the Supreme Court, exposes civilians to intrusion depending on which part of the country they seek to enter. (10)
Professionals, especially lawyers, who carry confidential client information on electronic devices are especially at risk. (11) Basic searches of a lawyer's personal electronic devices can expose sensitive information, including a client's personal information, litigation< strategy, and other confidential case information. (12) A more advanced search of the lawyer's electronic devices could reveal thousands of pages of privileged documents related to pending cases. (13) Exposing this information to border officials is a violation of attorney-client privilege, and threatens the integrity of a client's relationship with their attorney. (14) In this context, an attorney has a professional obligation to protect against these breaches by guarding against the possibility of these devices being searched. (15) But how can an attorney reasonably do so when these devices are so pervasive in the legal profession, so important for legal work, store such immense amounts of sensitive information, and are subject to different search standards based on which border zone the lawyer is in? (16)
Courts established the border search exception, which allows border officials to search travelers and items crossing into the United States without a warrant, during a time when portable electronics did not exist. In the modern world, electronics pervade nearly every aspect of daily life. Furthermore, these devices possess immense storage capacity and hold private, intimate details of one's personal and professional lives. For this reason, the court's holding in Alasaad contradicts the Fourth Amendment's protection against unreasonable searches and seizures. All electronics searches in border zones should require a warrant, or in the alternative, reasonable suspicion of criminal activity, because even basic searches can uncover personal, intimate, and sensitive information. Furthermore, electronics searches should be limited in scope to searches for digital contraband. Otherwise, these searches risk violating one's constitutional rights.
II. History
A. Origins of Fourth Amendment Jurisprudence
Prior to the American Revolution, British officials commonly issued warrants, also known as writs of assistance, allowing for generalized searches of colonists' private property. (17) These writs required neither a warrant nor probable cause, and remained active until the death of the British monarch who ruled at the time the writ was issued. (18) The Framers vehemently opposed the issuance of such warrants, and made this opposition abundantly clear. (19) The Framers of the Constitution drafted the Fourth Amendment to protect against general searches and seizures of private property by government officials. (20)
B. Scope of the Fourth Amendment
The Fourth Amendment states,
The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (21)
Under the Fourth Amendment, every search and seizure by a government official must be reasonable. (22) The Amendment protects people from unreasonable invasions of their legitimate expectations of privacy. (23) The reasonableness of a search depends on the totality of the circumstances, including the nature and purpose of the search and the extent to which it intrudes upon legitimate expectations of privacy. (24) Generally, a search of private property requires a warrant based on probable cause, or else the search is per se unreasonable. (25) The Supreme Court of the United States has defined several exceptions to the warrant requirement for reasonable searches. (26) Of utmost importance in this discussion is the border search exception. (27)
C. Scope of the Border Search Exception
While the Fourth Amendment protects civilians from unreasonable searches and seizures by government officials, the Supreme Court has classified border zone searches as an exception to the warrant requirement. (28) Border agents do not need warrants nor probable cause for basic border searches because the government has a significant interest in protecting the country by examining the people and items entering it. (29) More specifically, since border officials have a substantial interest in preventing the influx of contraband into the country, they can bypass the warrant requirement for searches. (30) The Supreme Court has stated, "[b]order searches, then, from before the adoption of the Fourth Amendment, have been considered to be 'reasonable' by the single fact that the person or item in question had entered into our country from outside." (31)
The border search exception applies to searches by government officials within border zones, including international terminals for inbound flights at airports. (32) Border agents can search one's person and any items they seek to bring into the United States without a warrant or probable cause. (33) The class of persons and items that border officials may search, however, is not limited to international travelers and their luggage. (34) It also includes workers in border zones, persons engaged in suspicious behavior in a border zone, and vehicles. (35) Furthermore, border officials can search items entering the country on their own, such as mail. (36)
Although the usual restrictions on searches and seizures are relaxed in border zones, the search must still be reasonable by Fourth Amendment standards. (37) Therefore, the totality of the circumstances must be considered when determining the constitutionality of warrantless border searches. (38) Basic border searches, a pat down search for example, do not require reasonable suspicion. (39) Since an extended, advanced border search entails greater delay than a basic border search, and thus a greater level of intrusion on reasonable expectations of privacy, government officials must justify the extended search with reasonable suspicion that the search may reveal contraband. (40)
Travelers who have contested warrantless searches of their electronics in border zones have been largely unsuccessful. (41) Most courts have held that the electronics search did not require reasonable suspicion of criminal activity per the border exception, or that officers had reasonable suspicion to conduct the search, or both. (42) Furthermore, most courts found searches and seizures of electronics at international airport terminals specifically to be reasonable under the border search exception. (43)
D. Recent Restrictions Established by the Supreme Court for Warrantless Searches of Electronics, and How They Affect International Travelers
In general, the Supreme Court has limited the scope of warrantless electronics searches. (44) In Riley v. California, the Court held that warrantless searches of cell phones are generally unconstitutional. (45) In that case, a search of the cell phone incident to arrest did not preclude the unconstitutionality of the search. (46) In Carpenter v. United States, the Court held that the government must generally obtain a search warrant supported by probable cause before acquiring cell site location information (CSLI) from a wireless carrier. (47) Courts have so far refused to enforce these restrictions on electronics searches in border zones. (48) Unfortunately, this refusal has left international travelers exposed to the possibility that their sensitive, confidential information may be exposed. (49)
Courts' application of the border search exception to searches of electronic devices particularly affects professionals, such as lawyers, who carry confidential information on electronic devices. (50) The U.S. Customs and Border Patrol ("CBP") maintains the authority to read any document carried by a traveler, including documents found on electronic devices, despite claims that such documents hold attorney-client privileged information. (51)
The American Bar Association (ABA) recently raised concern over the rise of invasive...
