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University of Chicago Legal Forum

Abstract

Forensic electronic device searches are a formidable weapon in a border protection agents’ arsenal. Agents download the data from an electronic device and may store it for up to fifteen years, where it can be accessed by thousands Department of Homeland Security (DHS) agents with minimal controls. Annually, agents collect the forensic digital data of over 40,000 international travelers. The border constitutes an exception to typical Fourth Amendment protections against unreasonable searches and seizures, as officials may search individuals crossing the border without a warrant or reasonable suspicion. At least one circuit has held that the Fourth Amendment’s protections pose no limit on whose or what electronic data may be collected when a traveler crosses the international border.

It is unacceptable to use the Fourth Amendment border exception to not only search, but also copy, retain, query, and share traveler data, with little evidence to support the action. Use of data gathered under the border exception should be limited to the purpose of the border exception: protecting the border. This Comment proposes that Fourth Amendment doctrine at the border should apply use-restrictions to properly balance individual privacy against the government’s deep national security interests.

This Comment addresses the splintering doctrine between the First, Fourth, Ninth, and Eleventh Circuits regarding the Fourth Amendment limitations to performing forensic electronic searches at the border. Use restrictions consider each use of data—extracting, retaining, querying, and sharing—as a separate Fourth Amendment search, subject to a separate reasonableness analysis. This Comment will argue that applying such restrictions in the border context prevents the government from using data collected under a narrow exception for broader purposes that would otherwise require a warrant.

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