The border search exception to the Fourth Amendment’s warrant requirement allows law enforcement officers at or near a national border, such as the U.S.-Mexico border in Texas, to search people and their personal effects without a warrant. In some situations, police might not even need a reasonable suspicion of federal or Texas criminal or immigration violations. Courts have placed some limits on the border search exception, but the question of whether law enforcement officers at the border can search the contents of electronic devices without a warrant remains unsettled on a national level. Many electronic devices have considerable storage capacity, leading to concerns over not only individual privacy but also professional and commercial privacy issues like trade secrets. Proposed legislation, and at least one lawsuit, are seeking to place limits on border searches of laptop computers, smartphones, and other devices.
Courts have long held that travelers at the U.S. border have a lessened expectation of privacy. One of the few courts to address the question of electronic devices held that the warrantless search of a person’s laptop did not violate the Fourth Amendment because the search did not cause “exceptional damage” to the computer, nor was the search conducted in a “particularly offensive manner.” United States v. Arnold, 533 F. 3d 1003, 1009 (9th Cir. 2008). The Ninth Circuit limited that ruling several years later, holding that a reasonable suspicion is required for the forensic examination of electronic devices in some cases. United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013) (en banc).
Proposed legislation in Congress has sought to protect individuals at the border from warrantless searches of electronic devices. The Travelers’ Privacy Protection Act of 2008, which did not become law, stated that “laptops and similar electronic devices” are different from other personal effects, since they “can contain the equivalent of a full library of information about a person, including medical records, financial records,…and privileged work product.” S.3612 § 2(4) (110th Cong., Sep. 26, 2008). The bill established strict requirements regarding suspicion, limited how searches could be conducted, and set restrictions on the use and retention of information obtained.