Can We Curate It? Why Luggage and Smartphones Merit Different Treatment at the United States Border

Abstract

The Fourth Amendment protects against unreasonable searches and seizures. At the United States border, however, sovereignty interests—namely who and what enters the country—allow for warrantless searches of property without probable cause. This Note explores the reach of the border exception to one category of property: electronic devices. At present, circuit courts disagree over what level of suspicion—no suspicion or reasonable suspicion—applies to forensic searches of electronics. Courts do agree that manual searches, performed without the assistance of external equipment, merit no suspicion at all. The suspicion gap between manual and forensic searches reflects an assumption that all manual searches are cursory and hence violate a device owner’s privacy less than a forensic search.

This Note argues that the existing line between forensic and manual searches should be reimagined; instead, electronic devices, such as smartphones, should be separated out from other electronic devices, such as cameras, and be subject to a reasonable suspicion standard irrespective of the nature of the search, forensic or manual. Redrawing the line between devices themselves recognizes that certain electronics (e.g. cameras) are more analogous to traditional luggage and therefore should receive the same treatment at the border where suspicionless searches are permitted. Like luggage, one can curate these devices: it is possible to know and choose what is inside. As the attenuation of the link between the device in question and traditional luggage expands, so too should the suspicion required. Smartphones and like devices should not be searched without reasonable suspicion. Finally, this Note concludes by recommending that the Customs and Border Protection directive, subject to review and modification every three years, be revised to distinguish between the two groups of electronic devices and account for the privacy concerns unique to the smartphone and related devices group.