abidor and house: lost opportunities to sync the border search doctrine with today’s technology

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Abidor and House: Lost Opportunities to

Sync the Border Search Doctrine with

Today’s Technology

Shannon L. Smith*

ABSTRACT

While today’s media focuses on National Security Agency (NSA) wiretap-

ping initiatives, international travelers, citizens and visitors alike, are be-

ing subjected to privacy invasions from customs agents scrutinizing the

digital contents of their electronic devices when entering the country. These

searches are neither supported by a warrant nor based on reasonable sus-

picion. Rather, they are based on criminal records in a database or associ-

ation with certain groups, nations, or ideas—if based on anything at all.

On December 12, 2012, Representative Engel of New York reintroduced

proposed legislation in the U.S. House of Representatives that sought to

impose restrictions on searches of electronic devices and digital media

storage at our borders. However, the 112th Congress is not the first Con-

gress in which Representative Engel introduced his bill, and he is not the

only member of Congress to propose restrictions for searches of electronic

devices conducted at the border. The government has recognized a “border

exception” to the Fourth Amendment warrant requirement since the United

States’ inception; only the exception’s initial rationale of collecting cus-

toms duties has shifted to an ambiguous “national security” rationale. For

decades the United States Supreme Court has consistently upheld the au-

thority of various federal agencies, including the Department of Homeland

Security, to conduct inspections and searches at ports of entry without

probable cause or reasonable suspicion. This authority is based on the Ex-

ecutive Branch’s prerogative at vulnerable areas susceptible to national

security threats. But the last case the Supreme Court decided on the Fourth

Amendment’s border exception was a decade ago and did not contemplate

electronic devices or the data they contain. The circuit courts, absent any

other direction from the Court or Congress, have considered laptops and

other electronic devices equivalent to a piece of luggage that carries a di-

minished expectation of privacy. This Note seeks to demonstrate that lap-


224 CRIMINAL AND CIVIL CONFINEMENT [Vol. 40:223

tops are different and carry with them a higher expectation of privacy than

a suitcase. Small, portable, password-protected laptop computers have re-

placed the bulky, locking, in-home file cabinets for safeguarding personal

information. Given their ability to store massive amounts of data, many

computers contain an individual’s entire life, so much so that hackers mine

personal data and engage in identity theft. While it is true that a thief can

take someone’s suitcase off of the conveyor belt, the consequences are vast-

ly different. Two cases, Abidor v. Napolitano and House v. Napolitano,

were poised to provide an opportunity for the United States Supreme Court

to bring border exception jurisprudence up to date in the absence of con-

gressional action. However, with the settling of one and dismissal of the

other in 2013, both opportunities have been lost.

I. INTRODUCTION

“The Warrant Clause has stood as a barrier against intrusions by offi-cialdom into the privacies of life. But if that barrier were lowered now to permit suspected subversives’ most intimate conversations to be pillaged then why could not their abodes or mail be secretly searched by the same authority?”1 That was the warning heeded by Justice Douglas in 1972 via his concurring opinion in United States v. United States District Court.2 That case, also known as the Keith case, involved electronic surveillance practices engaged in by the United States government. Justice Douglas’s warning has proved accurate. Today, any international traveler crossing the border into the United States, whether a citizen or visitor, may be subjected to the “pillaging” of hundreds or thousands of personal documents and im-ages stored on a laptop or other electronic device without any measure of “individualized suspicion” by law enforcement.3 As was the case in Keith, the esoteric claim of “national security” often is at play at the border.4

On December 12, 2012, Representative Eliot Engel of New York rein-troduced the bill known as the Securing our Borders and our Data Act

* J.D. Candidate, New England Law | Boston (2014); B.A., Political Science, Hunter Col-

lege (2010). I would like to thank Victor M. Hansen, Associate Dean and Professor of Law,

for his guidance and feedback during the writing process, as well as the New England Jour-

nal on Criminal and Civil Confinement staff for their dedication and efforts in the publica-

tion of this Note. I would like to thank my family and friends for their patience and support.

I am especially grateful for the encouragement and guidance from Philip Allen Lacovara.

1. United States v. United States Dist. Court (Keith), 407 U.S. 297, 332 (1972)

(Douglas, J., concurring).

2. Id.

3. CBP DIRECTIVE No. 3340-049 § 5.1.2 (Aug. 2012), available at

http://www.dhs.gov/xlibrary/assets/cbp_directive_3340-049.pdf.

4. See, e.g., id. § 1.

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2014] ABIDOR AND HOUSE 225

(SBDA) for the third time.5 The SBDA is a five-page bill intended to im-pose a reasonable suspicion standard before Immigration and Customs En-forcement (ICE) or Customs and Border Protection (CBP) agents may search international travelers’ laptops and other electronic devices at the United States’ border and its functional equivalent, e.g., airports.6 But Eliot Engel is not the only representative in the initiative to reign in the Depart-ment of Homeland Security (DHS) and their warrantless searches of elec-tronic devices at the border.7 In fact, several bills have been introduced in the House and Senate since the 110th Congress, ranging from coast to coast and varying in size and scope.8 Apart from those bills, the border search doctrine has not been reexamined since the Supreme Court ruled on United

States v. Flores-Montano in 2004—a case that involved narcotics traffick-ing via an automobile gas tank.9

In 2013, two cases were pending in the First and Second Circuits that might have presented the Court with an opportunity to revisit the privacy expectation at the border and consider it in a twenty-first century context. Abidor v. Napolitano and House v. Napolitano were poised to present an opportunity for the Court to clarify which highly intrusive or damaging facts are sufficient to trigger a reasonable suspicion requirement for con-ducting searches at the border. In September House settled,10 and on the last day of the year Judge Korman of the Second Circuit dismissed Abidor for lack of jurisdiction.11

5. Katie W. Johnson, Legislation to Restrict Warrantless Border Searches of Laptops

Reintroduced in House, BNA.COM (Jan. 3, 2013), http://0-

ediscov-

ery.bna.com.portia.nesl.edu/edrc/7082/split_display.adp?fedfid=28977957&vname=ddeenot

allis-

sues&wsn=500290000&searchid=19549114&doctypeid=6&type=oadate4news&mode=doc

&split=0&scm=7082&pg=0.

6. See generally id.


8. See Securing Our Borders and Our Data Act of 2011, H.R. 6651, 112th Cong.

(2011), available at http://beta.congress.gov/bill/112th-congress/house-bill/6651/text; Bor-

der Security Search Accountability Act, H.R. 216, 112th Cong. (2011), available at

http://www.gpo.gov/fdsys/pkg/BILLS-112hr216ih/pdf/BILLS-112hr216ih.pdf; Electronic

Device Privacy Act, H.R. 6588, 110th Cong. (2008), available at

http://www.gpo.gov/fdsys/pkg/BILLS-110hr6588ih/pdf/BILLS-110hr6588ih.pdf; Travelers’

Privacy Protection Act, S. 3612, 110th Cong. (2008), available at

http://www.gpo.gov/fdsys/pkg/BILLS-110s3612is/pdf/BILLS-110s3612is.pdf.

9. See generally United States v. Flores-Montano, 541 U.S. 149 (2004).

10. Susan Stellin, The Border Is a Back Door for U.S. Device Searches, N.Y. TIMES

(Sept. 9, 2013), http://www.nytimes.com/2013/09/10/business/the-border-is-a-back-door-

for-us-device-searches.html?pagewanted=all&_r=0.

11. Abidor v. Napolitano, No. 10-CV-04059 (ERK)(JMA), 2013 WL 6912654, at *13



This Note explores the issue of the heightened privacy expectation in da-ta stored on personal electronic devices. Part II frames this discussion by providing a history of the warrant requirement imposed by the Fourth Amendment and the so-called border exception to that requirement. Part III reviews current jurisprudence involving Fourth Amendment searches and the border exception to the warrant requirement. It also introduces two cas-es pending in the First and Second Circuits that may present the United States Supreme Court with an opportunity to act absent an act of Congress. Part IV of this Note outlines the various acts of legislation introduced in Congress over the past several years and considers twenty-first century pri-vacy expectations. Part V explains why today is different, making the pre-sent a time ripe for change. It poses an alternative approach to considering searches of electronic devices and their digital contents. Finally, this Note concludes by contending that if the Legislature fails to enact legislation limiting DHS’s authority, then the Judiciary should act when it has the op-portunity to do so.

II. DEVELOPMENT OF THE BORDER EXCEPTION

A. The Warrant Requirements of the Fourth Amendment

The Fourth Amendment to the Constitution provides that:

The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violat-

ed, and no Warrants shall issue, but upon probable cause, supported by

Oath or affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.12

Fourth Amendment jurisprudence gauges the intrusiveness of a search or seizure by looking at an individual’s subjective expectation of privacy and whether that expectation is one that society objectively finds reasonable.13 The Supreme Court has maintained that the Fourth Amendment guarantees these protections to individuals during searches and seizures—unless there

(E.D.N.Y. Dec. 31, 2013) (finding that Association Plaintiffs lacked standing for unlikeli-

ness of having electronic devices searched at border and Abidor was entitled to destruction

of electronic materials under the regulation). While this Note does not address Article III

standing or the doctrine of prudential standing doctrine, it is interesting that Judge Korman

indicated in his opinion that “Abidor could have established standing . . . by adding a cause

of action for damages based on his claim that he was subject to an unreasonable search.” Id.

at *12.

12. U.S. CONST. amend. IV.

13. Benjamin J. Rankin, Restoring Privacy at the Border: Extending the Reasonable

Suspicion Standard for Laptop Border Searches, 43 COLUM. HUM. RTS. L. REV. 301, 329

(2011) (citing Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring)).



is an exception.14

B. Origins of the Border Exception

The border exception was initially recognized by the First Congress’s Act of July 31, 1789, which created the Customs Service.15 The first justi-fications for the exception were to provide the Customs Service latitude in collecting and enforcing duties and tariffs on imports arriving in the U.S.16 The protected interest behind the First Congress’s exception was financial, and it remained so for well over a century.17 Approximately 130 years lat-er, Prohibition shifted the rationale from fiscal protection to one of “nation-al self protection.”18 Since at least the 1960s, the border exception has also recognized the government’s interest in preventing unauthorized immigra-tion into the United States.19 In the 1980s, the War on Drugs reinforced the underlying interest claimed in the early twentieth century, which along with unauthorized immigration, remains the interest today—preventing the traf-ficking of contraband into the U.S.20 Today’s rationale for border searches, “national security” or crime prevention, is far different from the trade con-cerns present in 1789.

The September 11, 2001, terrorist attacks ushered in a new wave of ter-roristic fear, but terrorism is hardly new. Terrorism has existed in its mod-ern form for approximately 200 years, and the idea of terrorism has existed for at least 1,500 years.21 Modern-day warfare and terrorism techniques have called for innovative methods to ensure the United States does not ex-perience another attack like the destruction of the World Trade Center; the-se innovative methods have undoubtedly led to thwarting terrorist plots

14. See Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 310 (1967) (Black,

J., concurring); see also Katz v. United States, 389 U.S. 347, 357 (1967).

15. See Victoria Wilson, Laptops and the Border Search Exception to the Fourth

Amendment: Protecting the United States Borders from Bombs, Drugs, and the Pictures

from Your Vacation, 65 U. MIAMI L. REV. 999, 1003 (2011) (“The Act of July 31, 1789 was

enacted ‘[t]o regulate the Collection of Duties imposed by law . . . on goods . . . imported

into the United States.’”); Act of July 31, 1789, 1 Stat. 29 (1789).

16. See Wilson, supra note 15.

17. Id. at 1004.

18. Id. at 1003.

19. See, e.g., United States v. Martinez-Fuerte, 428 U.S. 543, 551 (1976) (explaining

government’s interest in permanent checkpoints north of the international border with Mex-

ico).

20. Wilson, supra note 15, at 1004.

21. Delaware Criminal Justice Council, The History of Terrorism: More than 200

Years of Development, STATE OF DEL., http://cjc.delaware.gov/terrorism/history.shtml (last

visited Feb. 25, 2013).



against the United States and some of its allies.22 For example: the East and West Coast airliner plots in 2002 and 2003, the Heathrow Airport plot in 2003,23 and the United Kingdom 2006 liquid explosives plot that resulted in the ban on carrying significant volumes of liquids on planes.24

There are two facts that make any national security argument for search-ing and seizing laptops without a warrant at the border questionable: first, terrorism is nothing new;25 and second, the destructive plots were not un-covered by seizing and searching individual laptops at the border.26 Rather, they were uncovered through the use of foreign intelligence, which carries greater protections of privacy, even if minimal.27

C. The Border Exception Today

The ambiguity of “national security” is highlighted by the fact that, to date, most of the cases involving DHS’s policy for searching laptops in-volve child pornography.28 In 2008, the Ninth Circuit held in United States

v. Arnold that “reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border.”29 Arnold was selected for secondary questioning while going through cus-toms at Los Angeles International Airport.30 When he powered on his lap-top to demonstrate to customs agents that it was functioning properly, fold-ers entitled “Kodak Pictures” and “Kodak Memories” appeared on the desktop.31 Agents clicked on the folders and discovered a photo depicting two nude women, which prompted them to investigate further; eventually

22. STEPHEN DYCUS ET AL., NATIONAL SECURITY LAW 480 (4th ed. 2007).

23. Id.

24. Airliner Bomb Suspects ‘Bugged’, BRITISH BROAD. CORP. (May 6, 2008),

http://news.bbc.co.uk/2/hi/uk_news/7386725.stm.

25. See generally United States v. United States Dist. Court (Keith), 407 U.S. 297

(1972). Keith arose from a criminal proceeding in which defendants had been charged with

“conspiracy to destroy Government property” (i.e., domestic terrorism). Id. The Code of

Federal Regulations defines terrorism as “unlawful use of force and violence against persons

or property to intimidate or coerce a government. . .in furtherance of political or social ob-

jectives.” FBI General Functions, 28 C.F.R. § 0.85 (2013).

26. See Airliner Bomb Suspects ‘Bugged’, supra note 24.

27. See id.; infra Part V.B.2 (providing examples of privacy protections in foreign

intelligence surveillance).

28. Patrick E. Corbett, The Future of the Fourth Amendment in a Digital Evidence

Context: Where Would the Supreme Court Draw the Electronic Line at the International

Border?, 81 MISS. L.J. 1263, 1270 (2012).

29. United States v. Arnold, 533 F.3d 1003, 1008 (9th Cir. 2008) (debunking Arnold’s

argument that a laptop is more like a home because it is “readily mobile” and the border di-

minishes one’s expectation of privacy).

30. Id. at 1005.

31. Id.



they found images of what was believed to be child pornography.32 ICE and CBP, following Arnold, both issued directives that memorialized their unfettered authority to search electronic devices and digital data at the bor-der without reasonable suspicion or probable cause.33

Three years later, the Ninth Circuit expanded customs inspectors’ au-thority to search electronic devices absent a warrant and reasonable suspi-cion at the border to the “extended border” in United States v. Cotterman.34 An extended border search is one that occurs “away from the border where entry is not apparent.”35 Extended border searches assume that the individ-ual in question “cleared the border and thus regained an expectation of pri-vacy” in their possessions.36 Cotterman’s electronic devices were searched when inspectors at the Mexico-Arizona border checked Cotterman’s pass-port against a CBP database and discovered he had been convicted fifteen years earlier for use of a minor in sexual conduct, lewd and lascivious con-duct upon a child, and child molestation.37 The initial search of Cotter-man’s laptops and digital cameras did not yield any child pornography.38 However, since many of the files were password protected, ICE agents in-structed the border inspectors to detain the laptops for forensic examina-tion.39 Two days later and 170 miles away from the border, forensic tech-nology revealed approximately seventy-five images of child pornography in unallocated space on one of the hard drives.40 The detention and forensic examination of the device was valid because of the border exception doc-trine and its application to disallow contraband.41

D. Reactionary Politics and Law Resurface Post 9/11

Prior to September 2001, ICE agents were permitted to only glance at documents; reasonable suspicion was required to review or analyze beyond a glimpse.42 Additional protections also were in place: absent a traveler’s

32. Id.

33. See generally Wilson, supra note 15.

34. See United States v. Cotterman, 637 F.3d 1068 (9th Cir. 2011) (Cotterman was

revisited en banc in 2012.); see infra Part V.B.1.

35. United States v. Cotterman, 709 F.3d 952, 961 (9th Cir. 2013) (citing United

States v. Guzman-Padilla, 573 F.3d 865, 878-79 (9th Cir. 2009)).

36. Id. (citing United States v. Abbouchi, 502 F.3d 850, 855 (9th Cir. 2007)).

37. Id. at 1071.

38. Id.

39. Id.

40. Id. at 1070, 1072.


42. Analysis of Excerpts from Asian Law Caucus–Electronic Frontier Foundation

2008 FOIA Release, at 1, available at https://www.eff.org/document/analysis-foia-

documents (last visited Aug. 14, 2013).



consent, probable cause for seizure was required before documents could be copied,43 and reasonable suspicion that a document fell into a certain readability category was required for any third-party translation of docu-ments discovered on electronic devices.44

In the wake of the Ninth Circuit’s 2008 ruling in Arnold,45 CBP and ICE both issued directives providing guidance and standard operating proce-dures for searching electronic devices at U.S. borders.46 Both policies au-thorize agents to review data stored on electronic devices without suspi-cion; seek assistance from other federal agencies; share information with other federal, state, or foreign agencies; and retain electronic devices for further investigation.47 In addition, customs agents may copy data from such devices to further DHS objectives.48 Between October 1, 2008, and June 2, 2009, close to 3000 searches of laptops and other media were con-ducted by CBP officers at the border.49 While 3000 may seem insignificant considering how many individuals cross the border each year, erosions of liberty typically start small.50

CBP is well aware of the public sentiment criticizing its extended pow-ers.51 CBP port directors have been notified that searches and seizures of electronic devices have become a “hot topic” that has reached the White House.52 Further, they have been requested to establish two procedures:

43. Id.

44. Id.

45. United States v. Arnold, 533 F.3d 1003, 1008 (2008).

46. CBP Directive No. 3340-049 (2009), available at

http://www.dhs.gov/xlibrary/assets/cbp_directive_3340-049.pdf; U.S. Immigration and Cus-

toms Enforcement Directive No. 7-6.1 (2009), available at

http://www.dhs.gov/xlibrary/assets/ice_border_search_electronic_devices.pdf.









49. See Government Data About Searches of International Travelers’ Laptops and

Personal Electronic Devices, ACLU (Aug. 25, 2010), http://www.aclu.org/national-

security/government-data-about-searches-international-travelers-laptops-and-personal-

electr.

50. See Jonathan Turley, 10 Reasons the U.S. Is No Longer the Land of the Free,

WASH. POST (Jan. 13, 2012), http://articles.washingtonpost.com/2012-01-

13/opinions/35440628_1_individual-rights-indefinite-detention-citizens.

51. See Analysis of Excerpts from Asian Law Caucus, supra note 42, at 5.

52. Id.



one requiring supervisory approval for searches and port director approval for seizures of electronic devices; the other requiring a port director’s or chief’s permission prior to copying electronic media.53 This guidance fails to mention which standard will be used by port directors to determine whether to grant permission to seize and/or copy electronic media.54 It also is silent on any standard required for approval to search. 55 In other words, the CBP instructions miss the point—it permits the unbridled authority of CBP and ICE agents to arbitrarily select electronic devices for search and seizure absent the slightest reasonable suspicion.

DHS’s policies are reminiscent of reactionary politics from the past. For instance, the Palmer Raids following World War I, in which “suspected radicals” were deported to Russia,56 and McCarthyism after World War II, where Senator Joseph McCarthy decried hundreds of “card-carrying” communists for infiltrating the U.S. government.57 The Palmer Raids and “Red Scare” resulted in the infringement on liberties of many Americans due simply to political affiliation.58 The same discriminatory treatment was cast on Japanese-Americans following the bombing of Pearl Harbor, when the Court upheld the military’s imposition of a curfew on and internment of Japanese-Americans in California.59

Just as the curfew policy then was implemented under the auspices of national security, the border exception doctrine is being used to justify war-rantless scrutiny of intimate digital documents and photos. At first blush, it may seem like plausible policy. But in reality, what often occurs is the sin-gling out, absent any reasonable suspicion of criminal activity, of both visi-tors and citizens of Arab, Middle Eastern, Muslim, and South Asian de-scent for “intrusive questioning [and] invasive searches.”60 Such singling out is not limited to the basis of ethnicity, race, or religion; other Ameri-cans fall into this category because of their political affiliations and other

53. Id.



56. A Byte Out of History: The Palmer Raids, FBI (Dec. 28, 2007),

http://www.fbi.gov/news/stories/2007/december/palmer_122807.

57. Arthur Miller, McCarthyism, PBS (Aug. 23, 2006),

http://www.pbs.org/wnet/americanmasters/episodes/arthur-miller/mccarthyism/484/.

58. See id.

59. See generally Korematsu v. United States, 323 U.S. 214 (1944) (questioning the

constitutionality of a military imposed curfew on Japanese-Americans in California).

60. Hearing on Ten Years After 9/11: Are We Safer?, S. Comm. on Homeland Securi-

ty and Governmental Affairs, U. S. Senate, at 3 (Sept. 13, 2011) (Statement of Margaret

Huang, Rights Working Group), available at

http://www.rightsworkinggroup.org/sites/default/files/RWG_StatementfortheRecord_AreW

eSafer_091311.pdf.



associations.61 ICE’s and CBP’s invasive searches include rummaging through personal documents stored on laptops and other electronic devic-es.62

Over time, it has come to pass that the myopic restrictions on liberty fol-lowing the World Wars were an overreaction by the government.63 Califor-nia has since enacted the Fred Korematsu Day of Civil Liberties and the Constitution Bill in 2010, which encourages schools to “teach Korematsu’s story and why it remains so relevant today.”64 Yet, it seems that story has been forgotten by the Department of Justice who, in 2003, issued guidance to federal law enforcement agencies that provides their officers “wider lati-tude to consider race and ethnicity in matters involving national security and border integrity.”65 Allowing DHS the broad authority it has assumed under Arnold “may authorize and even encourage arbitrary and discrimina-tory enforcement”—the same conduct the Court has sought to eliminate in other contexts.66 The Palmer Raids, McCarthyism, and Korematsu are prime examples of reactionary politics and law. The present is an oppor-tunity to prevent history from repeating itself.

III. U.S. V. FLORES-MONTANO - THE LAST BORDER EXCEPTION CASE

DETERMINED BY SCOTUS (NOTHING ELECTRONIC ABOUT IT)

It is time for the Supreme Court to make a twenty-first century exception to the border exception. United States v. Flores-Montano was the last case in which the Court issued an opinion on the border exception doctrine.67 In Flores-Montano, the Court held that the warrantless seizure of Flores-Montano’s gas tank at the international border did not require reasonable suspicion,68 stating that vehicles are not privy to suspicion because they are not the same as “highly intrusive searches of the person [having] dignity

61. See generally Complaint, Abidor v. Napolitano, 2010 WL 3477769 (E.D.N.Y.

Sept. 7, 2010) (No. CV 10-4059); House v. Napolitano, No. 11-10852-DJC, 2012 WL

1038816 (D. Mass. Mar. 28, 2012).

62. Hearing on Ten Years After 9/11, supra note 60.

63. See, e.g., A Byte Out of History: The Palmer Raids, supra note 56.

64. Ling Woo Liu, California Marks the First Fred Korematsu Day, TIME (Jan. 30,

2011), http://www.time.com/time/nation/article/0,8599,2045111,00.html.

65. Memorandum re: Agenda of the Privacy and Civil Liberties Oversight Board,

BRENNAN CTR. FOR JUST. (Oct. 26, 2012),

http://www.brennancenter.org/analysis/comments-submitted-privacy-and-civil-liberties-

oversight-board.

66. City of Chicago v. Morales, 527 U.S. 41, 56 (1999) (holding a city ordinance in-

valid under the void for vagueness doctrine).

67. See generally United States v. Flores-Montano, 541 U.S. 149 (2004).

68. Id. at 150.



and privacy interests.”69 Further, the Court maintained that “[t]he Govern-ment’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border.”70 The Court clearly has left open the notion that some searches at the border will require reasonable suspicion.71 Yet, national security seemingly has permitted the Court to evade the issue of whether the Executive has overreached its authority at the border; how-ever a lot has changed since 2004.

Abidor72 and House73 both demonstrated the true concern behind water-ing down Fourth Amendment protections under the auspices of national se-curity. Instead of being the typical case involving digital child pornogra-phy, both of these cases involved electronic documents comprised of an individual’s words and thoughts for personal, professional, or educational use.74 Prior to settling in September 2013, House had survived a motion to dismiss and was prepared to move forward; Abidor was still waiting for his day in court. Both cases provided a set of facts that would have allowed the Supreme Court to clarify what searches qualify as “highly intrusive search-es of the person—dignity and privacy interests” sufficient to require a heightened standard for searches conducted at the border and its functional equivalent.75

A. House v. Napolitano

House was a First Circuit case that involved a laptop search for docu-ments based on the traveler’s association with an unpopular Army intelli-gence analyst charged with aiding the enemy.76 On November 3, 2010, Da-

69. Id. at 152.

70. Id.; see also Wilson, supra note 15, at 1003.

71. Flores-Montano, 541 U.S. at 156 n.2.

72. See Abidor v. Napolitano, No. 10-CV-04059 (ERK)(JMA), 2013 WL 6912654, at

*1-2 (E.D.N.Y. Dec. 31, 2013). On September 9, 2013, The New York Times reported that

David House settled his claim against DHS. According to the article, documents revealing

the government’s use of border crossings to circumvent the Fourth Amendment were re-

leased to House as part of the settlement. The documents also confirmed that no evidence of

any crime committed by House was found on any of his electronic devices seized by CBP.

Not surprisingly, CBP declined to comment on its settlement with House and did not answer

questions regarding travelers’ rights at the border. The author finds it curious that DHS

would settle a case if it had done no wrong and wonders if DHS will settle future cases to

avoid having its practices brought before the Court. Stellin, supra note 10.

73. House v. Napolitano, No. 11-10852-DJC, 2012 WL 1038816, at *1-2 (D. Mass.

Mar. 28, 2012).

74. See generally id.; Abidor, 2013 WL 6912654.

75. Flores-Montano, 541 U.S. at 152.

76. About Bradley, BRADLEY MANNING SUPPORT NETWORK,

http://www.bradleymanning.org/learn-more/bradley-manning (last visited Mar. 30, 2013).



vid House returned to the United States from vacation in Mexico.77 With-out explanation or a request for consent, House was detained and DHS agents confiscated his laptop computer, video camera, cell phone, and a USB drive as he was preparing to board his connecting flight from Chicago to Boston.78 David House was a founder of The Bradley Manning Support Network, an international grassroots organization created to support the de-fense of Chelsea Manning (formerly Bradley), the U.S. Army private ac-cused of leaking classified military documents to Wikileaks.79 Manning sought to bring transparency to Americans, something that many of us de-sire.80 Numerous people believe Manning’s actions were deplorable, if not an outright violation of law.81 However, like all reprehensible crimes, that does not deprive him of the right to counsel. Our system is one that pro-vides counsel for those in need, whether through the public or the private sector.82 There is nothing illegal about establishing a non-profit to assist with the financial obligations of such legal representation; in many ways, society has come to depend on it—the ACLU is a prime example.83 A rea-sonable suspicion of criminal conduct required for searching electronic de-vices potentially would have prevented House from DHS scrutiny.

In May 2011, House filed suit against the Secretary of DHS, as well as the Commissioner of CBP and the Director of ICE, alleging that the search and prolonged detention of his electronic devices violated the First and Fourth Amendments.84 The defendants moved to dismiss the complaint and the Massachusetts District Court denied the motion, finding that with re-spect to the forty-nine day detention of House’s electronic devices, House had a plausible argument.85 While not exactly a win with respect to con-ducting the search in the first place, the decision nonetheless indicated that

77. House, 2012 WL 1038816, at *3.

78. Id.

79. Id.

80. See About Bradley, supra note 76.

81. Manning was found guilty of some of the charges against him on July 30, 2013

and pleaded guilty to others. Ed Pilkington, Bradley Manning Verdict: Cleared of ‘Aiding

the Enemy’ but Guilty of Other Charges, THE GUARDIAN (July 30, 2013),

http://www.theguardian.com/world/2013/jul/30/bradley-manning-wikileaks-judge-

verdict?INTCMP=SRCH; see Ed Pilkington, Bradley Manning Pleads Guilty to 10 Charges

but Denies ‘Aiding the Enemy’, THE GUARDIAN (Feb. 28, 2013),

http://www.theguardian.com/world/2013/feb/28/bradley-manning-pleads-aiding-enemy-

trial?INTCMP=SRCH.

82. Miranda v. Arizona, 384 U.S. 436, 471-72 (1966).

83. See How You Can Help, ACLU, http://www.aclu.org/how-you-can-help (last vis-

ited Apr. 1, 2013).

84. House v. Napolitano, No. 11-10852-DJC, 2012 WL 1038816, at *4 (D. Mass.

Mar. 28, 2012).

85. Id.



some courts are not willing to simply dispose of a case under the border exception doctrine. Had House’s case not settled, any decision reached by the First Circuit likely would have been appealed and would have presented an ideal opportunity for the Supreme Court to draw a line at the border with respect to searches of electronic devices.

B. Abidor v. Napolitano

Abidor was a case pending within the Second Circuit.86 Like House, the facts did not involve child pornography; they involved association with an unpopular religion.87 Pascal Abidor, a U.S.-French citizen, was a Ph.D. student at the Institute of Islamic Studies at McGill University in Canada.88 At the end of the academic year in May 2010, Abidor took an Amtrak train home to New York City.89 When he crossed the border at Quebec, a routine check of boarding passes and passports was conducted.90 The inspecting agent asked Abidor about his travels, to which he replied he was a student of Islamic Studies in Canada.91 He was removed from the train where he was further questioned and CBP agents searched his laptop computer.92 Af-ter a few hours, he was released without his laptop and external hard drive.93

Abidor’s complaint included the National Association of Criminal De-fense and the National Press Photographers Association as joint plaintiffs in the case.94 Lisa Wayne was a criminal defense attorney in Colorado. She was involved with the Mexico Legal Reform Project, which required fre-quent travels across the border.95 Upon returning to the U.S. after one of her trips to Mexico, she was selected for a search by a CBP officer who in-dicated his awareness that she was a defense lawyer and asked whom she visited in Mexico.96 During the search, Wayne was required to provide the password to her laptop, which was then taken from her and presumably searched.97 The ICE and CBP policies present a special issue for lawyers:

86. See Complaint, Abidor v. Napolitano, No. CV 10-4059, 2010 WL 3477769

(E.D.N.Y. Sept. 7, 2010).

87. Id. at *7.

88. Id.

89. Id. at *24.

90. Id. at *25-26.

91. Id. at *27.

92. See id. at *34-39.

93. See id. at *40-45.


95. See id. at *86-88.

96. See id. at *92.

97. See id. at *94-95.



broken confidences of clients. Confidentiality is a hallmark of the legal sys-tem, so much so that ethical rules prevent disclosure of information shared between lawyers and clients except in extreme situations, and even then confidentiality trumps disclosure.98 The rationale is that justice will not be effectively served if clients do not disclose information with their lawyers, and clients will not disclose information they think may be shared.99 Lisa Wayne’s case demonstrated the concern for customs agents using their broad authority to step out of bounds—neither the CBP nor the ICE di-rective provides for inquiries as to lawyers’ cases, yet the CBP officer’s questioning did exactly that.

Prior to December 31, Abidor’s case provided another potential oppor-tunity for the Supreme Court to revisit the border search doctrine and clari-fy which searches are considered highly intrusive so as to warrant reasona-ble suspicion at the border. Its dismissal could lead to yet another decade of waiting for the Court to consider Fourth Amendment searches at the border in today’s technological times. Notwithstanding the lost opportunity with respect to Abidor and House, the Supreme Court had an opportunity to change the legal landscape surrounding the border search exception in Cot-

terman.100 Cotterman petitioned the Court for certiorari in August 2013.101 Cotterman’s petition was denied on January 13, 2014.102

IV. DEAD IN THE WATER

Challenging the Executive’s authority is a fundamental principal of our tripartite government.103 Under the separation of powers doctrine, the Leg-islature and Judiciary ensure the Executive does not exploit its power and turn the country into a tyrannical state.104 Several members of Congress have introduced bills since the 110th Congress that would limit the Execu-tive’s broad reach at the border.105 Unfortunately, the bills never gained the

98. MODEL RULES OF PROF’L CONDUCT R. 1.6 (2009).

99. Id. at R. 1.6 cmt. 2.

100. Cotterman v. United States, 709 F.3d 952 (9th Cir. 2013), petition for cert. filed,

82 U.S.L.W. 3095 (Aug. 5, 2013) (No. 13-186), 2013 WL 4027042. Abidor and House were

chosen as the focus of this Note due to the issues underlying both cases, i.e., the facts did

not include digital devices containing images of child pornography, rather they brought to

the forefront discriminatory issues concerning political, ethnic, and religious affiliations.

101. Id.

102. Cotterman v. United States, 709 F.3d 952 (9th Cir. 2013), cert. denied, 82

U.S.L.W. 3095 (Jan. 13, 2014) (No. 13-186).

103. Buckley v. Valeo, 424 U.S. 1, 122 (1976).

104. Wylene W. Dunbar, The Avoidance of Tyranny: Lessons of the Hudspeth Doc-

trine, 61 MISS. L.J. 61, 67 (1991).

105. H.R. 1726, 111th Cong. (2009); H.R. 216, 112th Cong. (2011).



popularity needed to make progress.106

A. Proposed Legislation

The Securing our Borders and our Data Act (SBDA) was first introduced in the House on July 31, 2008.107 It sought to limit searches of electronic devices based solely “on the power of the United States” by requiring rea-sonable suspicion of a person before searching the “digital contents of [a traveler’s] device or media.”108 Further, the bill required that the seizure of electronic devices or their digital contents be based on “some other consti-tutional authority” beyond executive power.109 Finally, the bill sought to add additional protections by requiring border agents to be trained and searches to be conducted out of the public view.110 In addition, the bill im-plemented reporting requirements on DHS.111 The SDBA has been intro-duced in the past three Congresses, and Representative Engel intends to re-introduce it in the current one.112

Representative Lofgren of California introduced the Electronic Device Privacy Act (EDPA) in the same year as the SBDA.113 Ms. Lofgren’s pro-posed legislation, a simple two page bill, sought to impose a general prohi-bition on searching electronic contents of persons’ digital devices at the border absent “lawful authority other than the power of a sovereign.”114

The Travelers’ Privacy Protection Act (TPPA) was introduced in both chambers of Congress.115 In the bill, Representative Smith and Senator Feingold acknowledged that laptops are “[u]nlike any other ‘closed con-

106. See, e.g., H.R. 1726; H.R. 216.

107. See Securing our Borders and our Data Act of 2008, H.R. 6702, 110th Cong.

(2008), available at http://www.gpo.gov/fdsys/pkg/BILLS-110hr6702ih/pdf/BILLS-

110hr6702ih.pdf.

108. Id.

109. Id.

110. Id. § 2(a)(3).

111. Id. §§ 2(a)(3), (d).

112. Johnson, supra note 5. Compare H.R. 6702 §§ 2(a)(3), (d), with Securing our

Borders and our Data Act of 2009, H.R. 239, 111th Cong. (2009), available at

http://www.gpo.gov/fdsys/pkg/BILLS-111hr239ih/pdf/BILLS-111hr239ih.pdf, and Secur-

ing our Borders and our Data Act of 2012, H.R. 6651, 112th Cong., available at

http://www.gpo.gov/fdsys/pkg/BILLS-112hr6651ih/pdf/BILLS-112hr6651ih.pdf.

113. Electronic Device Privacy Act, H.R. 6588, 110th Cong. (2008), available at

http://www.gpo.gov/fdsys/pkg/BILLS-110hr6588ih/pdf/BILLS-110hr6588ih.pdf.

114. Id.

115. Travelers’ Privacy Protection Act, H.R. 7118, 110th Cong. (2008), available at

http://www.gpo.gov/fdsys/pkg/BILLS-110hr7118ih/pdf/BILLS-110hr7118ih.pdf; see also

S. 3612, 110th Cong. (2008), available at http://www.gpo.gov/fdsys/pkg/BILLS-

110s3612is/pdf/BILLS-110s3612is.pdf.



tainer’ that can be transported across the border” and introduced 29 pages of legislation aimed at protecting U.S. citizens’ right to privacy at the bor-der.116 The TPPA would impose a reasonable suspicion requirement—defined in the bill as “a suspicion that has a particularized and objective ba-sis”—for searches “of the content of any electronic equipment.”117 It would also require a warrant based on probable cause or an order from the Foreign Intelligence Surveillance Court for foreign intelligence information.118 Un-der the bill, a “seizure” is the “retention of electronic equipment” or copies of digital content for more than twenty-four hours.119 Additionally, the TPPA establishes procedures for conducting searches and seizures, prohib-iting profiling, imposing reporting requirements, and providing compensa-tion for damage or loss of electronic equipment.120

Finally, there is the Border Search Accountability Act, which Repre-sentative Sanchez of California introduced in 2009 and 2011.121 Ms. Sanchez’s bill called for DHS to issue a rule and set out guidelines for what that rule must include.122 The aptly named Border Search Accountability Act sought to hold DHS accountable, rather than impose restrictions on its actions.123 Its greatest protection was the requirement that commercial in-formation and information subject to attorney-client privilege, doctor-patient privilege, or another privilege be handled in accordance with laws, rules, and regulations governing the information.124 There was no mention of requiring reasonable suspicion or probable cause to search or seize elec-tronic devices in the bill.125

Notwithstanding the fact that these bills failed to gain traction, they sig-nal that some members of Congress still seek to protect citizens’ privacy from Big Brother’s prying eyes. But the masses tend to be easily persuaded to relinquish civil liberties when they believe doing so will curtail unpopu-lar conduct such as child pornography, narcotics trafficking, and terror-ism.126

116. See H.R. 7118.

117. Id. §§ 3, 4.

118. Id. § 4(b)(3).

119. Id. § 3(11).


121. Border Security Search Accountability Act, H.R. 216, 112th Cong. (2011), avail-

able at http://www.gpo.gov/fdsys/pkg/BILLS-112hr216ih/pdf/BILLS-112hr216ih.pdf.

122. Id.


124. Id.

125. See id.

126. See generally Darren W. Davis & Brian D. Silver, Civil Liberties vs. Security in

the Context of the Terrorist Attacks on America, 48 AM. J. POL. SCI. 28 (2004) (discussing

American citizens’ willingness to trade civil liberties for security, particularly after 9/11).



B. Do Americans Simply Not Have the Same Privacy Expectations in the Electronic World?

Despite the addition of social media to the digital world, expectations of privacy with respect to electronic data still exist.127 Firewalls and pass-words are indicative of these expectations; as is the choice of Americans to stay abroad in order to avoid having their digital work and other data pil-laged by DHS.128 In 2012, the Pew Internet & American Life Project re-vealed that approximately six out of ten smartphone users chose not to download certain apps due to privacy concerns.129 Facebook is currently the number one social network with nearly 700 million active users as of December 2012.130 In spite of the amount of information users post, Face-book has reported that the vast majority of users apply Facebook’s privacy tools.131 There are two prongs to protecting privacy: safeguards imple-mented by the individual and protections afforded by the government.132 A Privacy International study published in 2007 ranked the U.S. as the “worst . . . country in the democratic world” for statutory protections of privacy.133 That ranking leaves one wondering whether it is technology that

127. Jim Dempsey, Privacy Policies Don’t Trump Expectation of Privacy, CTR. FOR

DEMOCRACY & TECH. (Apr. 21, 2011), https://www.cdt.org/blogs/jim-dempsey/privacy-

policies-dont-trump-expectation-privacy.

128. Susan Stellin, Border Agents’ Power to Search Devices Is Facing Increasing

Challenges in Court, N.Y. TIMES (Dec. 3, 2012),

http://www.nytimes.com/2012/12/04/business/court-cases-challenge-border-searches-of-

laptops-and-phones.html?pagewanted=all (referring to Laura Poitras, an American citizen

and documentary filmmaker who is estimated to have been detained more than forty times

crossing the U.S. border and who has decided to do her “editing outside the country”).

129. Cecilia Kang, Mobile Users Avoid, Uninstall Apps Over Privacy Concerns: Pew

Report, WASH. POST (Sept. 5, 2012, 10:00 AM),

http://www.washingtonpost.com/blogs/post-tech/post/mobile-users-avoid-uninstall-apps-

over-privacy-concerns-pew-report/2012/09/04/00fc4192-f6be-11e1-8253-

3f495ae70650_blog.html.

130. Anthony Wing Kosner, Watch Out Facebook, With Google+ at #2 and YouTube

at #3, Google, Inc. Could Catch Up, FORBES (Jan. 26, 2013, 9:33 AM),

http://www.forbes.com/sites/anthonykosner/2013/01/26/watch-out-facebook-with-google-

at-2-and-youtube-at-3-google-inc-could-catch-up/.

131. Bianca Bosker, Facebook Privacy Study Shows Why You Gave up on Keeping

Your Data to Yourself, HUFFINGTON POST (Mar. 6, 2013),

http://www.huffingtonpost.com/2013/03/06/facebook-privacy-study-carnegie-mellon-

university_n_2823535.html.

132. Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring) (“[T]here

is a two fold requirement, first that a person have exhibited an actual (subjective) expecta-

tion of privacy and, second, that the expectation be one that society is prepared to recognize

as ‘reasonable.’”).

133. Dan Farber, U.S. Ranks Near the Bottom in 2007 International Privacy Ranking,

BETWEEN THE LINES (Jan. 10, 2008, 3:37 AM), http://www.zdnet.com/blog/btl/u-s-ranks-



has led to a perceived diminishing expectation of privacy or a lack of pro-tection resulting in a that’s-just-the-way-it-is mentality.

V. SMALL ELECTRONIC DEVICES STORE BIG DETAILS

When the Ninth Circuit issued its ruling in Arnold in 2008,134 the trend of digital storage was well under way. But like every new concept, there are many hesitant to jump on board without the waters being tested first by others. Since 2004, when the U.S. Supreme Court last took up the border exception doctrine,135 there has been an evolution in the way data is stored.

A. Bulky Metal Filing Cabinets Are an Endangered Species

1. Twenty-First Century Technology: The Devices Keep Getting Smaller

One of the challenges with technology is the ability to keep up with it; another is embracing it. Given the nature of how technology trends emerge, there have always been gaps between generations. Sometimes those gaps questionably interfere with the carrying out of justice. For instance, older generations that are not “addicted” to computers in the way that members of the Millennial Generation are may not view them as the necessity that younger generations do.136 Baby Boomers and their predecessors relied on filing cabinets to store and protect their personal documents; these docu-ments included medical records, tax returns, and financial statements—documents not intended for public viewing and incapable of easy transport. Businesses have also come to rely on technology and many have migrated hard-copy business documents to electronic databases. Both personal and business documents have been recognized as private and confidential as is evidenced by regulations put in place to prevent public dissemination of the information they contain.

2. A Brief Refresher of the History of Computers

The first “general purpose electronic computer” was developed in 1946.137 It was intended to help calculate ballistic trajectories, and its use

near-the-bottom-in-2007-international-privacy-ranking/7549.

134. See generally United States v. Arnold, 533 F.3d 1003 (9th Cir. 2008).

135. See supra Part III.

136. See Transcript of Proceedings at 16, Abidor v. Napolitano, 2013 WL 6912654,

No. CV 10-4059 (E.D.N.Y. July 8, 2011) (Judge Korman stating he does not travel with a

laptop because his generation “didn’t become addicted to it.”).

137. A Brief History of the Computer, TIME,

http://www.time.com/time/photogallery/0,29307,1956593_2029011,00.html (last visited

Feb. 19, 2013).



was limited and not available to the general public.138 By 1960, computers began finding their way into the marketplace for business, science, and en-gineering use.139 Less than ten years later, the modern day router’s prede-cessor was created to keep the government’s network of computers alive should the Cold War bring about a nuclear attack.140 A mere forty years af-ter the development of the first computer, computing became personal with IBM’s introduction of the IBM 5150.141 IBM’s PC carried a price tag of $1565142 and dimensions of twenty inches in width, sixteen inches in depth, and five and one half inches in height.143

The computing landscape has changed methods for producing and stor-ing data. Today, one can create and store a multitude of data on a computer that is less than one inch in height, less than twelve inches in width, less than eight inches in depth, and weighs less than two and a half pounds.144 With prices below $300, computers have become much more accessible in the mainstream.145 Computers have paved the way for globalization and a virtually borderless world has turned trend into necessity.146 Although gen-erally the expectation of privacy diminishes in public, this technological shift, including password protection and document encryption, has made part of that expectation mobile.

3. It’s in the Cloud!

DHS indeed has a legitimate reason for wanting to ensure that persons entering the country are not bringing with them contraband harmful to the United States and its citizens.147 However, just as technology has created new modes of storing personal data on electronic devices, that same tech-

138. Id.

139. Id.

140. Id.

141. See id.

142. The Birth of the IBM PC, IBM, http://www-

03.ibm.com/ibm/history/exhibits/pc25/pc25_birth.html (last visited Aug. 14, 2013); see also

A Brief History of the Computer, supra note 137.

143. IBM 5150 Product Fact Sheet, IBM, http://www-

03.ibm.com/ibm/history/exhibits/pc25/pc25_fact.html (last visited Feb. 19, 2013).

144. Apple 11-inch Macbook Air, APPLE,

http://www.apple.com/macbookair/specs.html (last visited Aug. 14, 2013).

145. See Find Laptops, PCWORLD,

http://www.pcworld.com/product/pg/directory.html?partnerCategory.pageId=13 (last visited

Aug. 14, 2013).

146. See Vineeth Narayanan, Harnessing the Cloud: International Law Implications of

Cloud-Computing, 12 CHI. J. INT’L L. 783, 783 (2012).

147. Our Mission, DEP’T OF HOMELAND SEC., https://www.dhs.gov/our-mission (last

visited Jan. 2, 2013).



nology has also created a way to store that data elsewhere—in the “Cloud.”148 One service provider defines cloud computing as “an online service in which computer power, software programs, and data storage are provided whenever and wherever you need it.”149 The Cloud essentially is an extension of the Internet.150 It is a cyberspace repository that allows us-ers to listen to music, watch movies, and share photos via the Internet.151 Facebook, Pandora, Shutterfly, and Amazon, amongst many others, use the Cloud to provide these services.152

But the Cloud is not only for movie watching and photo sharing; appli-cations like Dropbox, Google Drive, and SugarSync are used to store doc-uments for access from any electronic device with an Internet connec-tion.153 Aside from users being able to retrieve their data from anywhere in the world and having remote access to that data in case of a computer crash,154 businesses can recognize cost savings and increased productivity through cloud computing.155 Small businesses in particular can benefit from cloud computing through cost savings on computer equipment.156 The World Economic Forum has looked to the Cloud as a way for governments to help emerging economies address “major healthcare, education, and oth-er societal issues.”157 In November 2011, the National Institute of Stand-ards and Technology prepared a roadmap for the U.S. government to im-plement cloud-computing technology.158 The purpose behind the roadmap is to “foster adoption of cloud computing by federal agencies and support

148. Eric Knorr & Galen Gruman, What Cloud Computing Really Means, INFOWORLD,

http://www.infoworld.com/d/cloud-computing/what-cloud-computing-really-means-

031?page=0,1 (last visited Jan. 2, 2013).

149. Cloud Computing – Your Computing Experience, Anywhere, Anytime, COX

COMMC’NS, INC., http://ww2.cox.com/myconnection/neworleans/learn/whats-so-hot/cloud-

computing.cox (last visited Aug. 14, 2013).

150. Joanna Stern, What is the ‘Cloud’?, ABC NEWS (June 26, 2012),

http://abcnews.go.com/Technology/cloud-computing-storage-explained/story?id=16647561.

151. Id.

152. Id.

153. Id.

154. Id.

155. Cloud Computing, CISCO,

http://www.cisco.com/web/solutions/trends/cloud/index.html (last visited Aug. 14, 2013).

156. COX COMMC’NS, INC., supra note 149.

157. JOANNA GORDON ET AL., EXPLORING THE FUTURE OF CLOUD COMPUTING: RIDING

THE NEXT WAVE OF TECHNOLOGY-DRIVEN TRANSFORMATION 2, WORLD ECON. FORUM (2010), available at http://www.weforum.org/reports/exploring-future-cloud-computing-riding-next-wave-technology-driven-transformation.

158. See generally LEE BADGER ET AL., U.S. GOVERNMENT CLOUD COMPUTING

TECHNOLOGY ROADMAP, VOL. I (2011), available at

www.nist.gov/itl/cloud/upload/SP_500_293_volumeI-2.pdf.



the private sector; reduce uncertainty by improving the information availa-ble to decision makers; and facilitate the further development of the cloud computing model.”159

What does cloud computing mean for DHS and its border security ef-forts? First, the Cloud is not going anywhere.160 One of the great things about the Cloud is that it fosters innovation and creates jobs—important concepts to governments of all nations.161 Second, the Cloud renders DHS efforts futile since a traveler who wishes to access potentially destructive data within the U.S.—the traveler that DHS is concerned about—may do so without a single electronic device ever crossing the border. As more inter-national travelers become aware of the opportunity for DHS (which in-cludes ICE and CBP) to search and potentially seize their electronic devic-es, travelers are contemplating ways to avoid the exposure, which can potentially have the effect of circumventing exactly what DHS seeks to do—eliminate photos, documents, and ideas they do not want in the U.S.162

For example, the University of Texas at Dallas issued an international travel advisory to its “[f]aculty, researchers, [and] staff” informing them of existing export controls, which fall within ICE’s mandate.163 The advisory offers guidance to international travelers, such as “[d]on’t carry the only copy of data you can’t afford to lose,” and “[h]ave a ‘Plan B’ if there is da-ta you will need when you reach your destination.”164 These guidelines may be innocuous, yet they reiterate the fact that harmful data finds its way in and out of the country in ways that do not require physical transport via electronic device.165

B. The Time is Ripe for Change

Several members of Congress have signaled a desire to change the way searches are conducted at the border.166 However, trying to obtain a con-

159. Id. at 12.

160. See Narayanan, supra note 146.

161. See WORLD ECON. FORUM, supra note 157.

162. Luigi Benetton, How to Secure Your Laptop Before Crossing the Border,

CANADIAN BAR ASS’N,

http://www.cba.org/cba/practicelink/tayp/printhtml.aspx?docid=32818 (last visited Oct. 11,

2013).

163. UT Dallas Travel | Research Compliance,

http://www.utdallas.edu/research/orc/export_control/travel/ (last accessed Feb. 21, 2014);

U.S. Immigration and Customs Enforcement, Directive No. 7-6.1 § 4, Border Searches of

Documents and Electronic Media (reviewed 2012), available at


164. UT DALLAS Travel | Research Compliance, supra note 163.

165. Id.

166. See, e.g., Securing Our Borders and Our Data Act of 2011, H.R. 6651, 112th



sensus of 535 individuals has proven to be an inefficient and daunting task.167 Reducing that number to nine Supreme Court Justices is, in theory, much more manageable and at least as effective.

1. Precedent Does Not Include Personal or Professional Electronic Documents

When it comes to the international border and its functional equivalent, the Court has long maintained that “[t]he Government’s interest in prevent-ing the entry of unwanted persons and effects is at its zenith at the interna-tional border.”168 The Government’s broad authority derives from the sov-ereign’s right of control without any need for exigent circumstances.169 However, there are constitutional limitations placed on sovereign power,170 as is indicated by the Court’s balancing of Fourth Amendment protection and the public interest.171 The Court has repeatedly left open the question as to “whether, and under what circumstances, a border search might be deemed ‘unreasonable’ because of the particularly offensive manner in which it is carried out.”172 Prior to settling and being dismissed, Abidor and House both presented ripe opportunities for the Court to take up that ques-tion—is the ability to search through every document stored on an individ-ual’s laptop, absent any suspicion “particularly offensive” enough to deem the search unreasonable? Many think so.173

Flores-Montano was the last case in which the Supreme Court issued a ruling on the border exception doctrine.174 Flores-Montano was decided in 2004 and involved the removal of an automobile gas tank for a narcotics search at the U.S.-Mexico border.175 The Court held that reasonable suspi-

Cong. (2011), H.R. 239, 111th Cong. (2009).

167. Id. (neither bill made it to the floor).

168. United States v. Flores-Montano, 541 U.S. 149, 152 (2004) (citing United States

v. Ramsey, 431 U.S. 606, 616 (1977)).

169. United States v. Ramsey, 431 U.S. 606, 620-21 (1977).

170. Id. at 620.

171. United States v. Martinez-Fuerte, 428 U.S. 543, 555 (1976).

172. Flores-Montano, 541 U.S. at 154 n.2 (citing to Ramsey, 431 U.S. at 618 n.13).

173. Christine A. Coletta, Note, Laptop Searches at the United States Borders and the

Border Search Exception to the Fourth Amendment, 48 B.C. L. REV. 971, 993-1006 (2007);

see THE CONSTITUTION PROJECT’S LIBERTY AND SEC. COMM., SUSPICIONLESS BORDER

SEARCHES OF ELECTRONIC DEVICES: LEGAL AND PRIVACY CONCERNS WITH THE DEPARTMENT

OF HOMELAND SECURITY’S POLICY 7-8 (2011), available at

http://www.constitutionproject.org/wp-

content/uploads/2012/09/Border_Search_of_Electronic_Devices_0518_2011.pdf.

174. See Flores-Montano, 541 U.S. at 149.

175. Id. at 151 (Flores-Montano attempted to enter at Otay Mesa Port of Entry in

southern California).



cion was not required for customs officials to conduct that kind of search.176 But automobile gas tanks are radically different from laptop computers. The border exception has become a case where the “exception [has swallowed] the rule.”177

Many of the border search cases involving laptops have come out of the Ninth Circuit.178 While cases involving laptop searches at the border ex-tend back to the 1980s, Arnold has been the seminal case since its decision in 2008.179 Prior to 2008, some measure of suspicion triggered the “search” of an international traveler’s electronic device beyond simply powering it up to demonstrate its functionality.180 It was Arnold that ICE and CBP used to justify their directives on carte blanche at the border.181

Significantly, the Ninth Circuit revisited Cotterman en banc in June 2012.182 The court, acknowledging that “technology . . . has not eviscerated [the expectation of privacy],” considered the question of “what limits there are upon this power of technology to shrink the realm of guaranteed priva-cy.”183 The underlying facts in Cotterman are similar to those of Abidor

and House: there was an initial search of electronic devices that ultimately

176. Id. at 150.

177. Florida v. J.L., 529 U.S. 266, 273 (2000) (citing Richards v. Wisconsin, 520 U.S.

385, 393-94 (1997) (declining to create a blanket firearm exception to the reasonable suspi-

cion requirement for a Terry stop and frisk)).

178. See generally United States v. Cotterman, 637 F.3d 1068 (9th Cir. 2011) (consid-

ering constitutionality of search and seizure of electronic devices for pornographic images);

United States v. Arnold, 533 F.3d 1003 (9th Cir. 2008) (holding reasonable suspicion is not

required for customs officials to search electronic devices at the border and its functional

equivalent); United States v. Romm, 455 F.3d 990 (9th Cir. 2006) (involving search of

computer for child pornography images conducted by airport customs officials).

179. See, e.g., United States v. Hilliard, 289 F. App’x 239, 239 (9th Cir. 2008) (stating

Hilliard’s reasonable suspicion argument was “squarely rejected” in Arnold); United States

v. Scott, 334 F. App’x 94, 94 (9th Cir. 2008) (holding Scott’s reasonable suspicion argu-

ment was foreclosed by Arnold).

180. See Romm, 455 F.3d at 994 (knowing of Romm’s confessed criminal history and

probation status led to Canadian border agent’s valid questioning in which pornographic

websites were discovered in Romm’s internet history); United States v. Ickes, 393 F.3d 501,

502 (4th Cir. 2005) (telling customs inspector time spent in Canada was vacation when van

appeared to contain “everything he own[ed]” created reasonable suspicion sufficient for fur-

ther inspection); United States v. Roberts, 274 F.3d 1007, 1009 (5th Cir. 2001) (finding that

informant’s corroborated tip constituted reasonable suspicion necessary to justify search and

holding that the border exception extends to both inbound and outbound travel).

181. See Border Searches of Electronic Devices, Directive No. 7-6.1 (U.S. Immigration

and Custom Enforcement Aug. 18, 2009); Border Search of Electronic Devices Containing

Information, Directive No. 3340-049 (U.S. Customs and Border Protection Aug. 20, 2009).

182. See generally United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013), petition

for cert. filed, 82 U.S.L.W. 3095 (Aug. 5, 2013) (No. 13-186).

183. Id. at 956-57 (citing Kyllo v. United States, 533 U.S. 27, 34 (2001)).



led to prolonged retention of those devices for forensic investigation.184 In Cotterman, the petitioner argued that the search should have been treated as an extended border search, which would have required customs agents to have reasonable suspicion before engaging in a forensic examination of his laptop.185 The Cotterman court recognized the intrusiveness of forensic searches since such searches are akin to a suitcase revealing “everything it had ever carried” and held that reasonable suspicion is required for a foren-sic examination of an international traveler’s electronic device.186 The Ninth Circuit’s holding is a positive step in acknowledging the modern ex-pectation of privacy in the “sensitive and confidential information” stored on electronic devices and that “a person’s digital life ought not be hijacked simply by crossing a border.”187 However, it fails to recognize that the ex-pectation of privacy exists prior to a forensic examination and that viewing electronic data as they are stored in real time still provides customs agents with an “unfettered dragnet” ability.188

2. An Alternative Argument

Current precedent has led lower courts to conclude that searching lap-tops and electronic devices is the equivalent to searching through a piece of luggage and therefore have a diminished expectation of privacy.189 The court views searching electronic devices as analogous to searching contain-ers, but what if instead the court views searching electronic devices at the border as analogous to wiretapping? There are similarities underlying both situations: laptops contain correspondence (the written equivalent of an oral conversation) and the expectation of privacy in documents stored on a lap-top is higher, like the privacy expectation in a phone conversation. Further, the rationale is the same—both wiretapping and laptop searches at the bor-der are conducted under the auspices of protecting “national security” or “national self protection.”190 If the Court views laptop searches as akin to wiretapping, a “least restrictive means test” would be required in the analy-

184. Compare id. at 958, with Complaint ¶ 42, Abidor v. Napolitano, No. CV 10-4059,

2010 WL 3477769 (E.D.N.Y. Sept. 7, 2010), and House v. Napolitano, No. 11-10852-DJC,

2012 WL 1038816, at *4 (D. Mass. Mar. 28, 2012).

185. Cotterman, 709 F.3d at 961.

186. Id. at 965-66. Ultimately the Ninth Circuit reversed the district court’s motion to

suppress because it concluded that border agents had a reasonable suspicion to conduct the

forensic search. Id. at 957.

187. Id. at 965.

188. Id. at 966.

189. United States v. Arnold, 533 F.3d 1003, 1009 (9th Cir. 2008).

190. E.g., Zweibon v. Mitchell, 516 F.2d 594, 600 (D.C. Cir. 1975); United States v.

Montoya de Hernandez, 473 U.S. 531, 551 (1985).



sis of the constitutionality of electronic devices searched at the border.191 The Ninth Circuit repudiated this test but applied it to border cases in the First Amendment context.192

Three decades ago in Keith, the Court recognized the apparent danger of abuse implicit in the vague concept of protecting the domestic security in-terest.193 “National security” is an ambiguous term, often interchanged with “national interest.”194 In Flores-Montano, the late Chief Justice Rehnquist referenced “national self protection” as the factor diminishing the privacy expectation at the border.195 The danger in using such terms is that they are over-inclusive. In some way, shape, or form, everything within a nation’s borders is part of the national interest.196 When these terms are used, they are generally perceived as indicating a grave threat to a nation’s survival.197 By attaching the “national security,” “national interest,” or “national self protection” label to any government objective, the Executive is able to gar-ner enough support to justify the erosion of liberties.198

Does requiring a warrant to search and/or seize an individual’s data, stored on electronic devices when crossing the border into the U.S., “undu-ly frustrate the efforts of Government to protect itself from acts of subver-sion and overthrow directed against it”?199 Arguably, it does not. The his-torical judgment of Congress, the judiciary, and the people demonstrated through Fourth Amendment norms finds that “unreviewed executive dis-cretion . . . [may] overlook potential invasions of privacy.”200 The Court

191. United States v. United States Dist. Court (Keith), 407 U.S. 297, 314 (1972).

192. Arnold, 533 F.3d at 1008 (citing United States v. Cortez-Rocha, 394 F.3d 1115,

1123 (9th Cir. 2005)). Arnold sought a higher standard of review alleging the search of his

electronic device constituted an infringement on his right to free expression. The Court has

consistently maintained a separation between First Amendment and Fourth Amendment

analyses where search and seizure of expressive material is involved. Id. at 1010.

193. Keith, 407 U.S. at 314 (referring to Senator Hart’s address in the floor debate on §

2511(3)).

194. Norman A. Bailey, National Interest Versus National Security? The Case of Iraq,

INST. FOR GLOBAL ECON. GROWTH, http://www.igeg.org/BaileyNationalInterestSecur.html

(last visited Mar. 30, 2013) (discussing the use of “national security” or “national interest”

for justifying military action–the same terminology is used to justify domestic government

action at the border); see also David H. Topol, United States v. Morison: A Threat to the

First Amendment Right to Publish National Security Information, 43 S.C. L. REV. 581, 595-

97 (1992).

195. United States v. Flores-Montano, 541 U.S. 149, 154 (2004) (citing Carroll v.

United States, 267 U.S. 132, 154 (1925)).

196. Topol, supra note 194, at 595-96.

197. Id. at 597.

198. See id. at 595.

199. United States v. United States Dist. Court (Keith), 407 U.S. 297, 314 (1972).

200. Id. at 317 (alteration in original).



has continuously reaffirmed that a warrant issued by a neutral and detached magistrate is required absent one of few exceptions—exceptions that have been carved out for the safety of law enforcement officers and the general public as well as for the preservation of evidence.201 The border exception is of a different kind—it essentially gives the Executive Branch unfettered authority to do as it pleases to “protect . . . its territorial integrity.”202

While it is true that an electronic device may store data potentially dev-astating to the well-being of the general public, it is not reasonable to be-lieve that any search beyond a cursory review of electronic devices—for assurance that the devices are not being used to traffic contraband or deto-nate a bomb—is justified absent particularized suspicion. Airlines are re-quired to maintain flight manifests that include the names of every passen-ger on board.203 Through Secure Flight, a program mandated by the U.S. Government, the names on the flight manifests get compared with the Ter-rorist Screening Database to ensure terrorists are not aboard flights entering or departing the United States.204 The Court has recognized that “[d]ifferent standards may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens.”205

When it comes to combating child pornography, thus far the most com-mon crime discovered on laptops at the border, ICE and DHS have pro-grams and mandates in place.206 Operation Peer Pursuit and its predecessor Operation Predator have resulted in several arrests of predatory criminals since 2003.207 These initiatives serve to combat child pornography illegally distributed through “peer-to-peer file trafficking computer networks.”208 Thus, subjecting international travelers to non-routine searches of their electronic devices absent reasonable suspicion at the border is an unneces-sary intrusion upon travelers’ privacy. Even the Ninth Circuit recognizes that “legitimate concerns about child pornography do not justify unfettered

201. See id. at 318.


Mar. 28, 2012).

203. See 49 U.S.C. § 44909 (2004).

204. Terrorist Screening Center, Frequently Asked Questions, FBI,

http://www.fbi.gov/about-us/nsb/tsc/tsc_faqs (last visited Aug. 15, 2013); see also Barry

Steinhardt, An Assessment of the EU-US Travel Surveillance Agreement, PRIVACY INT’L

(Jan. 3, 2012), https://www.privacyinternational.org/reports/an-assessment-of-the-eu-us-

travel-surveillance-agreement/report.

205. Keith, 407 U.S. at 323.

206. Press Release, U.S. Dep’t of Justice, Law Enforcement Initiative Targets Child

Pornography Over Peer-To-Peer Networks (May 14, 2004) (on file with author).

207. Id.

208. Id.



crime-fighting searches” via unregulated searches of citizens’ personal pa-pers—electronic or not.209

Notwithstanding the recognition of the sovereign’s interest in protecting its borders, the Supreme Court has recognized limited exceptions to the ex-ception.210 Specifically, the Court has indicated that “some level of suspi-cion” may be required in the case of “highly intrusive searches,” such as cavity or strip searches and for those resulting in destruction of property.211 Counsel for the government in Abidor acknowledged the danger “that [ICE or CBP agents] could inadvertently . . . change the file or delete it by look-ing at it . . . .”212 Further, agents “make image copies” of the data found on seized electronic devices, which increases the risk of dissemination of in-formation not intended for public disclosure.213

This is especially troublesome in the case of traveling attorneys or doc-tors who may have client or patient information stored on their devices. One may ask: exactly who are the CBP agents searching through travelers’ electronic devices? An entry level CBP position requires either three years of full-time general work experience or “four years of study in any field leading to a bachelor’s degree.”214 There is no requirement that an entry-level applicant placed at ports of entry have a technological, law enforce-ment, or legal background for searching travelers’ electronic devices.215

3. An Overview of Protections Against Unbridled Electronic Surveillance

To look at laptops as communication devices subject to wiretapping would provide more safeguards to Americans’ liberties than applying the usual Fourth Amendment analysis, even in the post 9/11-world. For in-stance, Title III of the Omnibus Crime Control and Safe Streets Act re-

209. United States v. Cotterman, 709 F.3d 952, 966 (9th Cir. 2013).


Mar. 28, 2012).

211. Id.

212. Transcript of Record at 34, Abidor v. Napolitano, No. CV 10-4059 (E.D.N.Y.

Sept. 7, 2010), 2010 WL 3477769.

213. Id.

214. CBP Officer Frequently Asked Questions (FAQ) Qualifications and Other Re-

quirements,

http://www.cbp.gov/linkhandler/cgov/careers/customs_careers/officer/cbpo_qual_req.ctt/cb

po_qual_req.pdf.

215. See CBP Officer Frequently Asked Questions (FAQ) Duty Locations Where CBP

Officers Are Hired,

http://www.cbp.gov/linkhandler/cgov/careers/customs_careers/officer/cbpo_duty_loc.ctt/cb

po_duty_loc.pdf (indicating that although not all ports of entry employ entry-level officers,

undisclosed ports of entry do).



quires the government to obtain a warrant before accessing stored commu-nications (e.g., email).216

The Foreign Intelligence Surveillance Act requires the President to ob-tain a court order from the Foreign Intelligence Surveillance Court or in certain circumstances authorization from the Attorney General prior to us-ing electronic surveillance for gathering foreign intelligence.217 Electronic surveillance is the acquisition of wire and radio communications sent by or intended for receipt by a U.S. citizen within the U.S.218 When it comes to obtaining intelligence on foreign powers—a bona fide protection of the na-tional interest—there are, albeit few, limitations placed on the Executive Branch.219 However, in the case of an individual U.S. citizen traveling abroad, customs inspectors can arbitrarily pick and choose whose electron-ic devices to search and how far to go within that search.220 In light of the Ninth Circuit’s recent ruling in Cotterman, there must be reasonable suspi-cion to conduct a forensic search.221 That is not enough, as private and con-fidential information is accessible without conducting a forensic search for evidence of data that is encrypted or once existed on the device.

The Stored Communications Act (SCA) is another piece of legislation that provides greater privacy protection than the Fourth Amendment at the border. Before law enforcement may intercept a wire, oral, or electronic communication under the SCA, the investigating officer must obtain a war-rant supported by probable cause.222 Like most rules, the SCA provides ex-ceptions to the warrant requirement. For instance, if there is a reasonable determination of exigent circumstances “involv[ing] (i) immediate danger of death or serious physical injury to any person; (ii) conspiratorial activi-ties threatening the national security interest; or (iii) conspiratorial activi-ties characteristic of organized crime.”223 Further, for the exception to ap-ply, there must be “grounds upon which an order can be entered” under the SCA.224 While the exception would still provide an opportunity to access communications absent a warrant, the narrowness of § 2518(7) of the SCA, including national security interests related solely to conspiracy, still pro-vides more comfort in privacy protection than the ICE and CBP directives.

216. STEPHEN DYCUS ET AL., supra note 22, at 493; Omnibus Crime Control and Safe

Streets Act, 18 U.S.C. § 2518(1) (1998).

217. Foreign Intelligence and Surveillance Act, 50 U.S.C. § 1802(a)(1) (2010).

218. Id. § 1801(f)(1).

219. See generally id. § 1802(a)(1).

220. See supra Part II.C.

221. United States v. Cotterman, 709 F.3d 952, 978 (9th Cir. 2013).

222. Stored Communications Act, 18 U.S.C. § 2518(1)-(3) (1998).

223. Id. § 2518(7)(a)(i)-(iii).

224. Id. § 2518(7).



Aside from Title III, the FISA, and the SCA, there are other congres-sional acts in place to protect privacy interests when it comes to wiretap-ping. One example is the Electronic Communications Privacy Act (ECPA), which permits the government to collect metadata relating to whom an in-dividual called, emailed, or instant messaged.225 Unlike the ICE and CBP directives, the ECPA imposes a restriction on executive access—a judge must certify a procedural request before telecommunications providers can disclose the information.226 The Wiretap Act also imposes restrictions on government access by requiring probable cause and a warrant before law enforcement can intercept communications.227 Neither ICE nor CBP agents are governed by such restrictions when it comes to searching digital data at the border.228 But just like the rationale behind these legislative acts, border agents act in the interest of national security.

There is, of course, one small problem with the preceding acts—they are limited to the protection of “communications.”229 Electronic devices, by their nature, contain much more data than communications. In addition, communication carries specific definitions in the acts that render them in-applicable to the border cases, absent an amendment to include data that is not “communication.”230

4. Some Protection is Better than None

Civil rights groups argue that the government oversteps its boundaries by being able to review digital communications via electronic surveil-lance.231 At least, under these Acts there is at minimum one hurdle that

225. Id. § 2516(1).

226. Matt Sledge, Warrantless Electronic Surveillance Surges Under Obama Justice

Department, HUFFINGTON POST (Sept. 28, 2012),

http://www.huffingtonpost.com/2012/09/28/warrantless-electronic-surveillance-

obama_n_1924508.html.

227. Monu Bedi, Facebook and Interpersonal Privacy: Why the Third Party Doctrine

Should Not Apply, 54 B.C. L. REV. 1, 32 (2013).

228. See, e.g., Stellin, supra note 128.

229. 18 U.S.C. § 2510(1) (2002) (“‘Wire communication’ means any aural transfer

made . . . by the aid of wire, cable, or other like connection.”); 50 U.S.C. § 1801(l) (2010)

(“‘Wire communication’ means any communication while it is being carried by a wire, ca-

ble, or other like connection.”).

230. 18 U.S.C. § 2510(1) (2002) (“‘Wire communication’ means any aural transfer

made . . . by the aid of wire, cable, or other like connection.”); 50 U.S.C. § 1801(l) (2010)

(“‘Wire communication’ means any communication while it is being carried by a wire, ca-

ble, or other like connection.”).

231. See generally International Principles on the Application of Human Rights to

Communications Surveillance, NECESSARY & PROPORTIONATE (July 10, 2013),

https://necessaryandproportionate.org/text.



must be overcome—a warrant or a court order.232 When it comes to DHS and the international border, there are no obstacles imposed by Fourth Amendment standards outside of the border context. This section is not in-tended to propose that any of the foregoing Acts apply to laptop searches at the border. Rather, its intent is to point out that in other areas of protecting the national interest by methods which use electronic devices, legislation exists to provide at least some protection of citizens’ and non-citizens’ pri-vacy in accordance with the Fourth Amendment.233 At least some of that legislation transpired as a result of a Supreme Court ruling.234

C. Absent an Act of Congress, SCOTUS Should Create a New Rule Limiting the Executive’s Carte Blanche at the Border

Since the introduction of the various initiatives beginning in the 110th Congress, Congress has failed to act on limiting DHS’s authority.235 The 112th Congress has been reported as the least productive Congress since 1948 and the “rottenest Congress in History.”236 Predictions for the 113th Congress are lackluster as déjà vu is the predicted theme with the new Congress expected to “look like the old one.”237 If predictions prove true, the Judiciary likely will be left with an opportunity for change. Eventually the question will have to be answered rather than relying on doctrines such as standing and Executive prerogative to skirt the issue. When the time comes, the Supreme Court should seize the moment and bring the border exception doctrine in sync with today’s technological society. No matter which way the Court rules, it could be the nudge Congress needs to actual-ly move forward with proposed legislation designed to impose limits on searches at the border and prevent a further erosion of privacy.

232. Sledge, supra note 226.

233. See Privacy Laws and Regulations, U.S. GEN. SERVS. ADMIN.,

http://www.gsa.gov/portal/content/104250 (last updated May 20, 2013). Whether such legis-

lation actually works is an entirely different discussion.

234. Foreign Intelligence Surveillance Court, FED. JUD. CTR.,

http://www.fjc.gov/history/home.nsf/page/courts_special_fisc.html (last visited Mar. 31,

2013) (describing the enactment of FISA and creation of the FISC as result of 1972 Su-

preme Court decision).

235. William Peacock, DHS Still Okay With Warrantless, Suspicionless Searches at

‘Border,’ FINDLAW (Feb. 13, 2013, 9:12 AM),

http://blogs.findlaw.com/technologist/2013/02/dhs-still-okay-with-warrantless-

suspicionless-searches-at-border.html.

236. Ezra Klein, Good Riddance to Rottenest Congress in History, BLOOMBERG (Jan. 2,

2013), http://www.bloomberg.com/news/print/2013-01-02/good-riddance-to-rottenest-

congress-in-history.html.

237. Sarah Binder, Prospects for the 113th Congress, HUFFINGTON POST (Jan. 21,

2013), http://www.huffingtonpost.com/sarah-binder/113th-

congress_b_2426574.html?view=print&comm_ref=false.



VI. CONCLUSION

Throughout history, policy changes have been implemented as if in ac-cordance with a swinging pendulum. In the first half of the twentieth centu-ry, the World Wars and Communism led to the creation of policies seeking to limit citizens’ liberties. Once the threat of Communism dissipated, liber-ty restrictions began to loosen, swinging the pendulum back to the side of liberty preservation. Today’s post 9/11-world has returned the pendulum back to liberty restrictions. DHS has used “national security” as an excuse to broaden its power and now has the authority to delve into the deepest realms of citizens’ privacy for any reason or no reason at all. That is not how the Founding Fathers intended this country to operate, as evidenced by our tripartite government.238 The system created was one of checks and balances to ensure citizens did not become subject to a tyrannical govern-ment, like that of the Crown, only to have their liberties stripped away from them. Members of Congress have unsuccessfully attempted to place re-strictions on the Executive Branch with respect to electronic device search-es conducted at the border. Now is the time for balance to be restored to justice. This Note is not intended to suggest that DHS has no right at all to search electronic devices at the border. Rather, its intent is to suggest that changes in societal norms, especially those brought about by technological advances, call for a rebalancing of the Fourth Amendment analysis. At a minimum, DHS should be required to have some level of suspicion before it can go beyond a cursory review of a traveler’s electronic device. In other words, DHS agents should be required to articulate objective facts indicat-ing that an international traveler’s electronic devices are reasonably be-lieved to be the means of executing criminal conduct before they may seize their devices or should require travelers to do more than simply turn the device on to demonstrate functionality. Laptops truly are different from luggage. Justice Douglas warned of “powerful hydraulic pressures” that “give the police the upper hand.”239 The broad authority granted to DHS, when it comes to searching electronic devices at the border, illustrates his concern loud and clear. History shows that sometimes it takes an act of the Court before there is an act of Congress.

238. See BENJAMIN FRANKLIN & WILLIAM TEMPLE FRANKLIN, MEMOIRS OF THE LIFE

AND WRITINGS OF BENJAMIN FRANKLIN 270 (1818).

239. Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).