Thursday, May 16, 2019
Laura Donohue (Georgetown University Law Center) has posted Customs, Immigration, and Rights: Constitutional Limits on Electronic Border Searches (Yale Law Journal Forum (2019), Vol. 128, Pp. 961-1015) on SSRN. Here is the abstract:
The warrantless search of travelers’ electronic devices as they enter and exit the United States is rapidly increasing. While the Supreme Court has long recognized a border-search exception to the Fourth Amendment’s warrant requirement, it applies to only two interests: promoting the duty regime and preventing contraband from entering the country; and ensuring that individuals are legally admitted. The government’s recent use of the exception goes substantially beyond these matters. U.S. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) are using it to search electronic devices, and at times the cloud, for evidence of any criminal activity, bypassing the warrant requirement altogether. Searches of these devices implicate privacy concerns well beyond those of the home, which has long been protected even for customs and immigration purposes.