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Putting Cano on ICE – A Path Forward for Border Searches of Electronic Devices

Posted by on Saturday, June 25, 2022 in Notes, Volume 24, Volume 24, Issue 4.

Davis Price Shugrue | 24 Vand. J. Ent. & Tech. L. 819 (2022)

Across the country, circuit courts disagree over what level of suspicion, if any, is required for border officials to search electronic devices. This leaves law enforcement agencies in the lurch because they must craft nationwide policies that cover jurisdictions with differing rules. The Supreme Court should bring this quandary to an end by holding that no reasonable suspicion or warrant is required for border searches of electronic devices. Many scholars and litigants have called for a reasonable suspicion or warrant requirement in light of Supreme Court decisions like Riley and Carpenter that recognize the privacy concerns raised by searches of electronic devices. However, a reasonable suspicion or warrant requirement fails to account for the overwhelming government interests at the US border, including ensuring national security, controlling who and what enters the country, and combatting transnational crime.

This Note calls upon the Supreme Court to reject limitations on border searches and hold that no reasonable suspicion or warrant is required for searches of electronic devices at the border. This holding recognizes the government’s paramount interests and leaves room for Congress to legislate additional protections as technology evolves.

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