Abstract

This Comment will argue that forensic extraterritorial electronic border searches for contraband do not require individualized suspicion. Although forensic electronic border searches for contraband at the U.S. border and ports of entry (e.g., interior airports) may require, at most, reasonable suspicion according to some courts, the further reduced privacy expectations and further magnified government interests involved in extraterritorial border searches dictate that forward-operating border officers merely adhere to the Fourth Amendment requirement of reasonableness with respect to U.S. persons. To support this argument, this Comment will proceed in five parts, first summarizing jurisprudence regarding the border search exception and routine versus non-routine border searches.

Second, it will explore recent case law examining the validity of electronic border searches. Third, this Comment will review the relatively sparse jurisprudence regarding the extraterritorial application of the Fourth Amendment. Fourth, it will argue that electronic border searches within or at traditional U.S. borders require, at most, reasonable suspicion, although the necessary level of suspicion in this sphere is far from resolved. Fifth, this Comment will analyze the necessary level of suspicion for electronic border searches at Preclearance locations in light of jurisprudence regarding the extraterritorial application of the Fourth Amendment. It should be noted that this Comment only focuses on those Fourth Amendment protections to which U.S. persons are entitled and does not address electronic border searches for the purpose of finding general evidence of wrongdoing.

Further, this Comment examines the required level of suspicion for searches of electronic devices in general because, in addition to ensuring that this Comment is more concise and cogent, if no Supreme Court precedent supports distinguishing between electronic devices and other types of property at the border, it is equally baseless—and imposes unnecessary constraints on CBP officers and introduces complexity that is anathema to the border search doctrine—to distinguish between different types of electronic devices.

How to Cite:

Rory McClain, Broadcasting Borders: Why Forensic Extraterritorial Electronic Border Searches for Contraband Do Not Require Reasonable Suspicion under the Fourth Amendment, 4 Ariz. L. J. Emerging Tech., no. 5, 2021, https://doi.org/10.2458/azlawjet.5504