CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Saturday, December 19, 2015

Miller on Digital Border Searches

Thomas Mann Miller has posted Digital Border Searches After Riley v. California (Washington Law Review, Vol. 90, 2015, Forthcoming) on SSRN. Here is the abstract:

The federal government claims that the Fourth Amendment permits it to search digital information on cell phones, laptops, and other electronic devices at the international border without suspicion of criminal activity, much less a warrant. Until recently, federal courts have generally permitted these digital border searches, treating them no differently from searches of luggage. Some courts have scrutinized these searches, but they have focused on a narrow question of whether officials must establish reasonable suspicion before conducting only the most exhaustive kind of digital search. The Supreme Court has not yet weighed in, but last year it held in Riley v. California that the search incident to arrest exception to the warrant requirement does not apply to cell phones. This Comment analyzes how Riley affects the border search doctrine and concludes that it should change the debate in significant ways.

First, Riley establishes that digital searches are categorically different from physical searches. This undermines the first wave of border search decisions and suggests that courts will have to analyze digital searches differently. Second, the Court recognized that digital searches could be even more intrusive than the search of one’s home. This finding weighs in favor of requiring at least reasonable suspicion, if not probable cause, for digital border searches. Finally, the Court provides a test for determining when to deviate from the warrant requirement in light of new technology. The Court’s analysis on this question supports reconsidering whether to extend the border search exception — traditionally applied to searches of persons and physical property — to searches of digital information.

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