Increased use of electronic devices and the sheer capacity of electronic storage has led the Supreme Court to acknowledge the special considerations such devices require when privacy concerns are implicated. Protections of privacy under the 4th Amendment have always been contrasted with concerns of national security; these concerns have recently come to the forefront as border searches of electronic devices become commonplace. While the border search doctrine has been generally exempt from 4th Amendment requirements of probable cause or even reasonable suspicion, searches of electronic devices implicate privacy in ways that the Supreme Court has not considered.
In U.S. v. Flores-Montano, the Supreme Court found that the government interest in security is at its zenith at the international border. Flores-Montano concerned Border Patrol officers searching a gas tank, including completely disassembling the engine, without any particularized suspicion. The Court held that “while some searches of property might be so destructive as to require a different result, the search in question was not one of them.” The Court also held that while border searches of containers did not generally require probable cause or reasonable suspicion, there may eventually be containers that would implicate such a privacy or dignity concern that a court could require such suspicion.
The Court did not clarify what that search would look like; however, Riley v. California gives an indication that the container search doctrine may not apply to searches of electronic devices, seen as containers or repositories of information. In Riley, as mentioned in multiple previous MTTLR blog posts, the Court said electronic devices are entitled to specialized considerations unlike searches of analog property, even if such privacy comes at a cost. While Riley is about searches incident to arrest and the Court does not mention border searches in its opinion, the privacy concern is no less legitimate at a US Border. Riley required a warrant for searches of electronic devices conducted incident to arrest; however, even acknowledging national security interests, Border Patrol officers should at least be held to a reasonable suspicion standard when the same privacy issues are implicated. Riley describes exactly the kind of container-based border searches the Flores-Montano court noted would become highly intrusive and compromise critical privacy and dignity rights of an individual.
The 9th Circuit, in U.S. v. Cotterman, held that Border Patrol officers must meet a reasonable suspicion standard in order to search electronic devices. Cotterman involved the forensic examination of a laptop computer at the border due to the owner’s presence on a child pornography suspect registry. The court held that the registry presence constituted reasonable suspicion for searching his electronic devices, especially since child pornography is often transported electronically. More importantly, the 9th Circuit held that reasonable suspicion was required due to the large amount of information available on cell phones and laptops and due to the need for forensic examination simply to circumvent passwords on any basic devices.
The District Courts of Maryland and Massachusetts have both agreed with Cotterman in border search cases involving electronic devices, the Maryland court basing its decision on Riley. However, multiple courts have declined to apply Riley to border searches, stating that the national security interest is too high and there is a reason the Supreme Court has not elucidated an electronic exception to the border search doctrine. As multiple circuit courts prepare to hear similar cases, it is unclear whether courts will agree with Cotterman and apply Riley
Deeva Shah is an editor on the Michigan Telecommunications and Technology Law Review, and a member of the University Michigan Law School class of 2017.