The Fourth Amendment’s border search doctrine has historically given the U.S. government the right to search, without individualized suspicion, the belongings of any individual crossing the U.S.border. Courts have traditionally justified this power by citing the government’s paramount interest in preventing the smuggling of dutiable goods and contraband such as illegal drugs. In the twenty-first century, the government has controversially used this power to search and detain travelers’ portable electronic devices, such as laptop computers, without suspicion to inspect for the transport of prohibited materials like child pornography, terrorist communications, and pirated software.
In March 2013, the Ninth Circuit in United States v. Cotterman became the first federal circuit court to rule that a particular border search of an electronic device had to be preceded by a finding of reasonable suspicion that the individual had committed a crime. Nonetheless, divergent rulings from the Fourth Circuit and a Massachusetts federal district court leave the future of digital border searches shrouded in legal uncertainty. Furthermore, the Department of Homeland Security’s recent reaffirmation of its view that no suspicion at all is required for such searches puts the government on a legal collision course with the Ninth Circuit and any other jurisdiction that adopts a similar position.
This Comment argues that digital border searches merit greater scrutiny than conventional border searches because they are more likely to harm individuals’ Fourth Amendment interests. The executive and legislative branches have been unwilling and unable, respectively, to cabin the government’s power to search people’s electronic devices without suspicion. Consequently, this Comment proposes that courts add guidance, consistency, and greater Fourth Amendment protection to the laws governing suspicionless digital searches at the border by adopting a special needs–style balancing test that weighs the government’s interests against the individual’s and provides that the most intrusive searches are impermissible without reasonable suspicion.61-1-3