Note | Constitutional Law
Unlock Your Phone and Let Me Read All Your Personal
Content, Please: The First and Fifth Amendments and
Border Searches of Electronic Devices
by Kathryn Neubauer*
From Vol. 92, No. 5 (July 2019)
92 S. Cal. L. Rev. 1273 (2019)
Keywords: First Amendment, Fourth Amendment, Fifth Amendment, Border Search Exception, Technology
Until January 2018, under the border search exception, CBP officers were afforded the power to search any electronic device without meeting any standard of suspicion or acquiring a warrant. The border search exception is a “longstanding, historically recognized exception to the Fourth Amendment’s general principle that a warrant be obtained . . . .” It provides that suspicionless and warrantless searches at the border are not in violation of the Fourth Amendment merely because searches at the border are “reasonable simply by virtue of the fact that they occur at the border . . . .” The CBP, claiming that the border search exception applies to electronic devices, searched more devices in 2017 than ever before, with approximately a 60 percent increase over 2016 according to data released by the CBP. These “digital strip searches” violate travelers’ First, Fourth, and Fifth Amendment rights. With the advent of smartphones and the expanded use of electronic devices for storing people’s extremely personal data, these searches violate an individual’s right to privacy. Simply by travelling into the United States with a device linked to such information, a person suddenly—and, currently, unexpectedly—opens a window for the government to search through seemingly every aspect of his or her life. The policy behind these searches at the border does not align with the core principles behind our longstanding First and Fifth Amendment protections, nor does it align with the policies behind the exceptions made to constitutional rights at the border in the past.
In order to protect the privacy and rights of both citizens and noncitizens entering the United States, the procedures concerning electronic device searches need to be rectified. For instance, the border search exception should not be applied to electronic devices the same way it applies to other property or storage containers, like a backpack. One is less likely to expect privacy in the contents of a backpack than in the contents of a password- or authorization-protected devices—unlike a locked device, a backpack can be taken, can be opened easily, can fall open, and also has been traditionally subjected to searches at the border. Moreover, there are many reasons why electronic devices warrant privacy.
*. Executive Notes Editor, Southern California Law Review, Volume 92; J.D., 2019, University of Southern California Gould School of Law; B.B.A., 2014, University of Michigan. My sincere gratitude to Professor Sam Erman for his invaluable feedback on early drafts of this Note as well as to Rosie Frihart, Kevin Ganley and all the editors of the Southern California Law Review. Thank you to Brian and my family—Mark, Diane, Elisabeth, Jennifer, Alison, Rebecca, Tony, Jason, Jalal, Owen, Evelyn, Peter and Manny—for all of their love and support. Finally, a special thank you Rebecca for reading and editing countless drafts, and to Jason for bringing to my attention this important issue.