The Perceived Intrusiveness of Searching Electronic Devices at the Border: An Empirical Study

The Fourth Amendment protects the right of individuals to be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The recurring question in Fourth Amendment jurisprudence, then, is the reasonableness of a given search in a given context. This Comment analyzes the reasonableness of searches of electronic devices—smartphones, laptops, and tablets—in the context of a border crossing. When a traveler enters the country, whether at an airport or a land border, how much protection should the contents of his or her electronic gadgets be given? Historically, all of a traveler’s possessions could be thoroughly searched, even without cause, because Fourth Amendment protections are substantially relaxed at the border. But, given the sheer amount of personal information that can be recovered from a smartphone’s text message log or a computer’s e-mail archive, is it “reasonable” to give government agents unfettered discretion to search the contents of electronic devices? A recent court opinion proposed that such searches should require an elevated level of suspicion; border agents would not be able to conduct the search unless they had some specific reason to suspect the traveler of wrongdoing. Scholars advocating for this type of elevated-suspicion standard base their arguments on the role that electronic devices now play in daily life, the degree of intrusion into the privacy and dignity of the individuals being searched, and the potential for surprise. Courts have recognized the importance of these factors in evaluating the reasonableness of border searches, particularly the degree of intrusion on privacy and dignity interests. When applying these criteria to searches of electronic devices, however, courts have disagreed on the magnitude of the privacy intrusion. In United States v Cotterman, for instance, the Ninth Circuit said that “[i]nternational travelers certainly expect that their property will be searched at the border. What they do not expect is that, absent some particularized suspicion, agents will mine every last piece of data on their devices or deprive them of their most personal property for days.” Based on this assessment, the Ninth Circuit then concluded that some searches of electronic devices represent a “substantial intrusion” on privacy and dignity and should therefore require elevated suspicion. Other courts, however, have disputed the notion that travelers find searches of electronic devices any more intrusive or surprising than searches of their other possessions and have therefore not reached the same result. This Comment presents the results of an empirical study of approximately three hundred adult Americans that measures the perceived intrusiveness of electronic-device searches and the actual expectations of ordinary citizens. The results show that people see the intrusiveness of electronic-device searches as comparable to that of strip searches and body cavity searches, which have generally been held to require elevated suspicion. Electronic searches are the most revealing of sensitive information and are only slightly less embarrassing than the most intimate searches of the body. These searches, therefore, implicate the types of privacy and dignity concerns that the Supreme Court has stated may lead to an elevated-suspicion requirement. Also, most people believe that their electronic devices are not subject to search without cause at a border crossing. Just as the Ninth Circuit feared in Cotterman, the study suggests a substantial chance of unfair surprise. By presenting the actual views and expectations of Americans, these data help quantify the civil liberty concern that is being weighed against the government’s interest in securing the border.