The Fourth Amendment requires that searches be reasonable. Courts effectuate this requirement through a balancing analysis, weighing a search’s harm to privacy against the governmental interest it serves. The results of these balancing exercises are then recast as constitutional requirements and exceptions. For example, the requirement that an ordinary search be backed by a warrant based on probable cause ensures that the government’s interest in the proposed search is sufficient to justify (or “warrant”) the privacy intrusion. Exceptions to the warrant requirement recognize situations in which the government’s interest is particularly strong or the privacy violation is especially weak. A pair of examples illustrates this point: the exigent circumstances exception is based on the government’s heightened interest in keeping police officers safe and evidence preserved; the plain view doctrine reflects the diminished privacy interest when something is left visible for anyone to see.
In the digital age, Fourth Amendment controversies tend to center on the privacy side of the reasonableness ledger. Because digital devices, such as laptops and smart phones, ordinarily contain libraries of personal information about their owners, searches of these devices are far more invasive than searches of analog objects. Many believe these heightened privacy stakes call for revisiting long-settled agreements about the reasonableness of various categories of search, at least as they apply to digital devices.
Searches of digital devices do indeed scramble the old Fourth Amendment balancing analysis, but not only in terms of privacy. The nature of digital devices changes the governmental interest side of the equation as well. For example, in Riley v. California, the Supreme Court did not apply the search-incident-to-arrest exception to data stored on digital devices, in part because, unlike physical objects, digital data does not pose a potential risk to the arresting officer. The characteristics of digital data thus directly affect the nature and strength of the government’s interest in conducting searches incident to arrests.
A recent circuit split concerning application of the border search exception to particularly invasive “forensic” searches of digital devices demands similar reconsideration. Commentary on the split has thus far mostly focused on privacy, but the nature of digital data also significantly changes the strength of the government’s interest. Before that point can be developed, however, some background on the split is in order.
I. The Border Search Exception and the Circuit Split over Digital Devices
The border search exception states that searches and seizures conducted at the international borders of the United States “are reasonable simply by virtue of the fact that they occur at the border” and therefore require neither suspicion nor a warrant. The border search exception further encompasses locations that are “functional equivalents” of the border, “such as international airports within the country and ports within the country’s territorial waters.” The exception also applies to “extended border searches,” which are “non-routine border searches that occur near the border.”
The border search exception is one of the oldest Fourth Amendment doctrines. It was created by the First Congress’s Act of July 31, 1789 as part of legislation concerning import regulations and duties. This statutory context suggests that the exception was first created to facilitate the collection of duties. However, the modern justification is based on preventing harmful contraband from entering the country, which itself is based on “the longstanding right of the sovereign to protect itself.” Courts have identified the prevention of contraband trafficking as “the strongest historic rationale for the border search exception.”
While the border search exception ordinarily permits law enforcement to perform searches without a warrant, especially invasive searches do not fall within this general exemption. The circuits are split over whether a forensic search of a digital device constitutes a sufficiently invasive search to exceed the bounds of the border search exception. On one side are the Fourth and Ninth Circuits. Each has held that some degree of suspicion is necessary to forensically search a computer device. On the other side is the Eleventh Circuit, which held that forensic searches of computer devices fall squarely within the border search exception and require no suspicion. At the heart of the split is an increasingly pervasive practice: the number of international travelers subjected to US border searches of their digital devices rose from 19,051 in 2016 to 30,200 in 2017.
In United States v. Cotterman, the Ninth Circuit became the first circuit to require some suspicion for forensic searches of digital devices occurring at the border. The court rooted its decision in privacy concerns. The Ninth Circuit found it significant that “the Supreme Court has recognized that the ‘dignity and privacy interests of the person being searched’ at the border will on occasion demand ‘some level of suspicion in the cases of highly intrusive searches of the person.’” This recognition, the Ninth Circuit reasoned, required that it consider a border search’s “implication for an individual’s dignity and privacy interests” in assessing the search’s reasonableness. The court argued that a “reasonableness determination must account for differences in property” and distinguished other property searches, such as the disassembly of a gas tank, from forensic computer searches because “the uniquely sensitive nature of data on electronic devices carries with it a significant expectation of privacy.” A forensic search of a computer device is therefore “a substantial intrusion upon personal privacy and dignity.” As a result, a showing of reasonable suspicion is required.
The Fourth Circuit joined the Ninth Circuit in requiring suspicion for forensic searches of computer devices conducted at the border in United States v. Kolsuz. While echoing the Ninth Circuit’s concerns about the “uniquely sensitive nature” of information stored on computer devices, the Fourth Circuit found further justification in Riley. Relying on Riley’s “express refusal to treat [cell] phones as just another form of container” and its determination that “cell phones are fundamentally different ‘in both a quantitative and qualitative sense’ from other objects traditionally subject to government searches,” the Fourth Circuit held that a forensic search “must be treated as a nonroutine border search, requiring some form of individualized suspicion.” Unlike in Cotterman, however, the Fourth Circuit did not determine whether reasonable suspicion, or an even higher level of suspicion, is required for a forensic search. Instead, the court tabled the issue by ruling that the good faith exception applies to the seized evidence regardless of the standard of suspicion.
In United States v. Touset, the Eleventh Circuit flatly rejected the Fourth and Ninth Circuit’s suspicion requirement and held that forensic searches of computer devices at the border need no underlying suspicion. The Eleventh Circuit asserted that a suspicion requirement for border searches can apply only to searches of persons, not property:
The Supreme Court has never required reasonable suspicion for a search of property at the border, however non-routine and intrusive, and neither have we. Although in one decision the Supreme Court required reasonable suspicion for the prolonged detention of a person until she excreted the contraband that she was suspected of “smuggling . . . in her alimentary canal” or submitted to an x-ray or rectal examination . . . it has never applied this requirement to property.
This reasoning reflects the distinction offered by the Cotterman concurrence, which noted that “[t]he Supreme Court has been willing to distinguish only between border searches of people and property, not between different types of property.”
Though Riley did distinguish between different types of property, the Eleventh Circuit argued that the Supreme Court correctly confined that distinction to the search-incident-to-arrest exception. “In Riley, the Supreme Court explained that the rationales that support the search-incident-to-arrest exception—namely the concerns of ‘harm to officers and destruction of evidence’—did not ‘ha[ve] much force with respect to digital content on cell phones.” In contrast, the Eleventh Circuit reasoned that child pornography—the contraband discovered by the border search in Touset—“poses the same exact ‘risk’ of unlawful entry at the border” in its digital or physical form. The court further held that it may be especially important for law enforcement officials to be allowed to search computer devices without suspicion because “if we were to require reasonable suspicion for searches of electronic devices, we would create special protection for the property most often used to store and disseminate child pornography.” Indeed, the Eleventh Circuit appeared to anchor its holding in the danger of smuggled child pornography: “We should not invent heightened constitutional protection for travelers who cross our borders with this contraband in tow.”
II. Borderless Digital Contraband and the Diminished Governmental Interest
The border search exception’s “strongest historic rationale,” preventing the trafficking of contraband, is an uneasy fit for illicit digital data. Imagine being tasked with stopping unwanted digital material from reaching Americans. Would it even cross your mind to select physical borders—airports, harbors, traffic checkpoints, and so on—as good places to search for digital contraband? Presumably not. Judge Jill Pryor supplied the reason why such a proposal would not make sense: “[E]lectronic contraband is borderless and can be accessed and viewed in the United States without ever having crossed a physical border.” Unlike physical contraband of international origin, which must be imported to be possessed by Americans, digital contraband faces no such geographic limitation. It thus appears that the rationale for the border search exception as a means to prevent contraband trafficking is an incongruous fit for digital content.
United States v. Touset found differently. In holding that forensic searches of digital devices require no suspicion, the court suggested that, unlike the search-incident-to-arrest context in Riley, digital data at the border poses similar risks as physical items. The court specifically stated that “‘digital’ child pornography,” the type of digital contraband at issue in Touset, “poses the same exact ‘risk’ of unlawful entry at the border as its physical counterpart.” In fact, the court concluded that the nature of digital contraband cuts in the other direction: “If anything, the advent of sophisticated technological means for concealing contraband only heightens the need of the government to search property at the border.”
Touset’s comparison of the risks posed by the importation of digital versus physical contraband does not withstand scrutiny. The reason the risk is different is because the internet makes digital contraband such as child pornography largely immune from interdiction at borders. As the Touset court itself noted, “With the advent of the internet, child pornography offenses overwhelmingly involve the use of electronic devices for the receipt, storage, and distribution of unlawful images.” The internet is indeed at the core of most child pornography offenses today. Sources suggest that “[i]llegal images no longer have to be developed, printed, and shipped; instead, they are digitally recorded and made available for unlimited distribution at virtually no cost.” Other forms of digital contraband behave the same way—anything that exists as digital data can be transmitted over borders and across the internet with “accessibility, affordability, and anonymity.”
The internet makes the physical border crossing of an item of digital contraband a non-event. Digital contraband comes from the internet, not local sellers. Whether it is uploaded from the United States, Mexico, or Malawi, it is equally available to anyone who wants to find it. It poses no additional threat by being physically imported on a digital device.
Compare digital to physical contraband. When drugs are imported across American borders, they become substantially more likely to be distributed, and therefore substantially more dangerous to Americans. A kilogram of cocaine in China is not going to get an American teenager addicted or line the pockets of a gang; a kilogram of cocaine in Texas very well might. It therefore stands to reason that courts consider the government’s interest in performing searches at the border “at its zenith”—keeping physical contraband out protects American citizens. This is in keeping with the rationale offered by the Supreme Court for the border search exception: such searches are made “pursuant to the longstanding right of the sovereign to protect itself.” Digital contraband simply does not work this way. Keeping it from crossing the border does significantly less to protect the country.
The major difference between how physical versus digital contraband are distributed answers Touset’s query about why physical and digital property should be treated differently. Touset turned a skeptical eye toward the distinction: “We see no reason why we would permit traditional, invasive searches of all other kinds of property . . . but create a special rule that will benefit offenders who now conceal contraband in a new kind of property.” Yet the basis for the distinction is inherent in the characteristics of digital property described above. That is, there are characteristics that make border interdiction an ineffective means of preventing digital contraband’s dissemination, but not physical contraband. One Federal court in Texas agrees: “[The] detection-of-contraband justification would not seem to apply to an electronic search of a cell phone or computer.” The distinction was also prefigured in Riley, wherein Justice Samuel Alito wrote, “[T]he Court’s broad holding favors information in digital form over information in hard-copy form.”
It is possible that someday the internet might not be the predominant means of sharing and obtaining digital contraband. To the extent that comes to pass, it would significantly change the calculus. If law enforcement were able to thwart the distribution of digital contraband over the internet, then it might make sense for consumers and purveyors of digital contraband to try to physically import it. This is not a totally implausible scenario, as law enforcement agencies have made some amount of progress in regulating the most unsavory parts of the internet, for example by employing a type of search known as “hashing.” There may even be some individuals who prefer to avoid the internet to access illicit digital content. While child pornography, for example, is mainly distributed online, in-person distribution also occurs. “Although [offenders] typically only meet online, . . . some [offenders] also physically meet in person” to share their illicit images.
Still, the internet remains “essentially ungovernable,” and there is good reason to suspect that the internet will continue to be the preferred distribution medium for participants in the trade of digital contraband. The structure of the internet makes control of child pornography and other forms of digital contraband very difficult. The internet is a decentralized system with no single controlling agency or storage facility. Because it is a network of networks, even if one pathway is blocked, many alternative pathways can be taken to reach the same destination.
The striking privacy issues raised by searches of digital devices make for intriguing Fourth Amendment questions, but the reasonableness of a search is determined by examining both privacy concerns and the government’s interest in conducting the search. The foregoing discussion seeks to shift the balance in the literature over the border search exception’s application to the new digital context, which has so far focused almost entirely on the privacy half of the balancing analysis. The discussion does not purport to conclusively resolve the circuit split over border searches of digital devices, but rather to show how the nature of digital devices can reshape the governmental interest in this type of search. Still, as courts continue to weigh how the border search exception applies to digital devices, it is significant that the exception’s core justification simply does not fit the way digital contraband is spread. Without it, courts must carefully consider whether there is sufficient governmental interest left to render suspicionless border searches of digital devices reasonable.
Charles W. Gibson is a J.D. Candidate (2020) at the University of Chicago Law School.