Immigration Article of the Day: “Do Something Already: Why Congress Should Resolve How the Border Search Doctrine Applies to Digital Devices” by Zev Chabus
Do Something Already: Why Congress Should Resolve How the Border Search Doctrine Applies to Digital Devices by Zev Chabus,
Cornell Journal of Law and Public Policy, Vol. 31, No. 1, 2021
The proliferation of digital devices, such as smartphones and laptops, in recent years has led to unresolved legal issues involving searches of such devices at United States border crossings. Currently, four federal Circuit Courts of Appeals are split as to when the border search doctrine, which obviates the need for a search warrant at border crossings, allows border agents to search digital devices and when such a search is considered “unreasonable” under the Fourth Amendment. This Note argues that Congress should resolve this issue by enacting a statute with a reasonable suspicion standard or delineating clear circumstances under which it is permissible for border agents to search digital devices. Furthermore, given the sensitivity of information that many people store on digital devices, any such statute should also include strong privacy protections. This Note explores the approaches of the four circuit courts that have ruled on this issue and examines solutions proposed by legal scholars and politicians. In light of the Supreme Court’s denial of certiorari on October 5, 2020, to a case that could have resolved this issue, this Note explains why Congress, not the Supreme Court, is best suited to solving this problem.
KJ