Crossing Constitutional Boundaries: Searches and Seizures of Electronic Devices at U.S. Borders

Abstract

In an era of increased attention to border security and continued technological advances, questions have been raised regarding searches and seizures of electronic devices at U.S. borders, implicating the First and Fourth Amendments. Many of these questions remain unanswered or have been made more complicated by conflicting court rulings, legislation and policies. Meanwhile, journalists continue to be targeted by warrantless searches and seizures. This article seeks to chart the legal landscape by (1) providing key background information, (2) discussing the First Amendment angle of warrantless searches of journalists’ devices, and (3) detailing the split among federal circuit and district courts regarding the Fourth Amendment question of whether border agents need reasonable suspicion to conduct forensic searches of electronic devices. The article argues that because federal courts, executive agencies, and Congress, have failed to adequately address journalists’ and other travelers’ rights at U.S. borders, the Supreme Court of the United States and Congress must provide at least some guidance regarding important Constitutional rights. Ideally, the Court or Congress should also ensure protection for journalists and press freedom at U.S. borders.