Featured Paper: “Let’s Have a Look, Shall We?” A Model for Evaluating Suspicionless Border Searches of Portable Electronic Devices

From the December 2013 issue of the UCLA Law Review: Sid Nadkarni, “Let’s Have a Look, Shall We?” A Model for Evaluating Suspicionless Border Searches of Portable Electronic Devices, 61 UCLA L. Rev. 148 (2013).

The article has an in-depth discussion of United States v. Cotterman, the border search case out of the 9th Circuit (en banc).

Abstract:

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.