Fear and Loathing at the U.S. Border

Abstract

In this paper, we argue that when technology crosses the border in the form of personal electronic devices (PEDs), there is a unique confluence of factors that requires a fresh look at the border search exception. International travel is now commonplace, or at least relatively routine, and personal electronic devices are ubiquitous and often necessary during travel. In this context, combining the Supreme Court’s refusal to question individual officers’ motives for a search with current border search law results in government searches which, we submit, are “unreasonable” under the Fourth Amendment. We demonstrate how the border search exception to the Fourth Amendment has never actually gone through a doctrinal development, and, as such, it is rather thoughtless. We show how the doctrine should appear if developed as an administrative search rather than a sui generis historical exception, and we demonstrate why the doctrine dictates that motive matters, at least when it comes to PEDs. Finally, we suggest that a correct Fourth Amendment analysis would allow a continuance of the suspicionless border searches that everyone undergoes, but that before a person can be targeted for a more intrusive, discretionary secondary search or seizure, agents must have at least reasonable suspicion of criminal activity.

Keywords: PED, personal electronic device, border search exception, Fourth Amendment search