On February 9, 2021, the First Circuit Court of Appeals issued the latest opinion in an ongoing debate amongst the Federal Circuits.¹ The issue presented was whether it was constitutional for federal agents to search a suspect’s electronic device at the United States’ border without a warrant. Given the importance of electronic privacy rights in our increasingly digital world, this opinion could have sweeping implications for the future of our constitutional tradition.

In the United States of America, the state is not free to arbitrarily conduct unreasonable searches of the property of its people.² This prohibition against unreasonable searches applies to citizens and undocumented immigrants alike.³ This protection against unreasonable searches is enshrined in the Fourth Amendment of the United States Constitution, which states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, 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.⁴

However, this prohibition is not an absolute protection against state conducted searches of any type.⁵ Rather, it is better understood as a prohibition against “unreasonable” state conducted searches.⁶ This is because the Fourth Amendment only applies when a person has a legitimate “reasonable expectation of privacy.”⁷ Consequently, “reasonableness” has been described as the “ultimate touchstone of the Fourth Amendment.”⁸

Under this line of jurisprudence, the Supreme Court has determined “that reasonableness generally requires the obtaining of a judicial warrant.”⁹ However, the Court has also acknowledged that in certain circumstances, a search may be reasonable without a judicial warrant.¹⁰ The Supreme Court has held that it is generally unreasonable, and thus unconstitutional, for the state to search an individual’s electronic device without a warrant.¹¹ In Carpenter v. United States, the Court explained that by allowing the state to search an individual’s cell phone without a warrant, it would be providing “an intimate window into a person’s life.”¹² That window would contain information completely unrelated to the underlying suspected criminal conduct including the individual’s “familial, political, professional, religious, and sexual associations.”¹³ Consequently, the Supreme Court stated that without a warrant, it would be unreasonable to search a person’s cell phone.¹⁴

However, there is still some telephone data that the state can obtain without a warrant.¹⁵ In Smith v. Maryland, the Supreme Court affirmed the use of the third-party doctrine as it pertains to certain types of data produced by telephones.¹⁶ The third-party doctrine states that “a person has no legitimate expectation of privacy in information he voluntarily turns over to a third party.”¹⁷ In that case, a telephone company, at the request of the state, installed a device called a pen register which recorded all the numbers dialed from the defendant’s home telephone.¹⁸ The Supreme Court held that the defendant had voluntarily turned over that data to his telephone company and thus he was not entitled to any constitutional protection.¹⁹ In Carpenter, the Supreme Court was careful not to overturn this precedent from Smith, stating that there are “limited capabilities” in the type of information obtainable through a pen register.²⁰ The Supreme Court reasoned that the type of information obtainable through a cell phone search was far more intrusive and passed the threshold of what is considered reasonable.²¹

This analysis is not unique to electronic data. A similar rationale applies to other types of Fourth Amendment searches. If the state is unreasonably searching a person’s effects, electronic or non-electronic, then it needs a warrant. However, the Supreme Court has been willing to recognize certain historical exceptions to the warrant requirement.²²

One of these exceptions to the warrant requirement is the border search exception.²³ Historically, the Executive Branch has had the “plenary authority to conduct routine searches at the border, without probable cause or a warrant.”²⁴ These searches are “not subject to any [reasonableness] requirement” including lesser standards than probable cause.²⁵ Contained within the meaning of the term “routine search” is the authority to “search carry-on bags and checked luggage, conduct canine sniffs or pat-downs, photograph and fingerprint travelers, and even disassemble the gas tank on a vehicle.”²⁶ This plenary authority to conduct routine searches has historically been “necessary to prevent smuggling and to prevent prohibited articles from” entering the country.²⁷

However, it is important to note that this exception is not all encompassing and does not necessarily cover nonroutine border searches. Nonroutine border searches include “strip, body cavity, or involuntary x-ray searches.”²⁸ The Supreme Court has suggested that a standard which is less strict than probable cause may be the proper standard for nonroutine searches, although it has declined to decide that officially.²⁹

Due to the fact that the stated goal of the border search exception is to prevent smuggling, particularly of prohibited articles, most searches justified under the exception will be physical in nature. For example, if the state is searching an individual for illegal narcotics at the border, it only makes sense that the state would search the physical possessions of an individual to ensure that there are not any narcotics entering the country. Hardly anyone would doubt the constitutionality of this search.

However, it is unclear under what circumstances the border search exception can be used to waive the warrant requirement for electronic devices. On one hand, the state has an interest in preventing illegal articles from entering the country and the evidence of such crimes may be contained on an individual’s electronic devices. On the other hand, these devices contain a myriad of personal information that the state has no legitimate interest in arbitrarily searching. This has led courts to distinguish between manual and forensic searches.³⁰ Manual searches are conducted by a government officer who searches the device by reviewing its contents in a way that any normal user of the device would.³¹ In contrast, a forensic search is conducted by a computer software which is “capable of unlocking password-protected files, restoring deleted material, and retrieving images viewed on web sites.”³² Consequently, a forensic search has the capacity to produce much more personal information than a manual search.³³ To this date, no federal circuit court has held that it is ever unconstitutional for the state to manually search an individual’s electronic device. However, the same cannot be said for forensic searches.

The constitutional question of when the border search exception can be used to justify a forensic search of an individual’s electronic device, has proved vexing for courts. Consequently, there is currently a federal circuit split regarding when such searches are proper. The approach taken by the Fourth and Ninth Circuits requires the government to at least have reasonable suspicion before performing a forensic search of an individual’s cell phone.³⁴ Reasonable suspicion is an intermediate standard of review in criminal cases which “is ‘considerably less than proof of wrongdoing by a preponderance of the evidence,’ and ‘obviously less’ than is necessary for probable cause.”³⁵ This standard only requires that a government agent have a “particularized and objective basis for suspecting the particular person stopped of criminal activity.”³⁶

The Eleventh Circuit takes a substantially different approach: it does not require any level of particularized suspicion to be shown for a forensic search of an individual’s electronic device to be proper.³⁷ This approach is extremely deferential to government officers and allows them to conduct forensic searches of electronic devices in essentially all circumstances.

In the recent challenge brought before the First Circuit, the court was not required to directly answer what level of particularized suspicion is required for a forensic search.³⁸ Although, its holding is consistent with the jurisprudence set forth by both the Fourth and Eleventh Circuits. Furthermore, it is important to note that there have been legal challenges brought on this issue in the Fifth,³⁹ Seventh,⁴⁰ and Tenth⁴¹ Circuits. However, in each of these cases, the court chose not to decide the constitutional question because it was not outcome determinative for the litigants in question.

This disagreement between the federal circuit courts gives rise to the subject of this Note. This Note will argue that as a matter of constitutional interpretation, the approach taken by the Eleventh Circuit is the correct approach. However, due to the highly deferential nature of this approach and its potential for abuse, this Note will also argue that Congress should act to create a statutory protection against these invasive searches.

In Part I of this Note, the approach taken by the Fourth and Ninth Circuits will be analyzed alongside the standard of reasonable suspicion. In Part II, the approaches taken by the Eleventh and First Circuits will in turn be analyzed through a constitutional lens. Additionally, Part II will explain why the approach taken by the Eleventh Circuit has potentially detrimental effects and is ripe for abuse. Part III will outline what meaningful congressional action on this issue could look like. The goal of this exercise will be to create a constitutionally sound framework which protects the electronic privacy rights of all those under the jurisdiction of the United States.