"A Ride on Horseback Is Materially Indistinguishable from a Flight to the Moon": Analogizing Searches of Digital Data at the Border

The Fourth Amendment guarantees the right to be free from unlawful search and seizure. But for every guarantee there is an exception. This exception, colloquially known as the border search exception, grants the United States government broad plenary authority to search people, luggage, mail, and ve...

Full description

Saved in:
Bibliographic Details
Published inHouston law review Vol. 57; no. 1; p. 203
Main Author Horne, Rachael Beavers
Format Journal Article
LanguageEnglish
Published Houston Houston Law Review Incorporated 01.10.2019
Subjects
Border security
Case law
Cybersecurity
Data integrity
Search & seizure
Online AccessGet full text

Cover

More Information
Summary:The Fourth Amendment guarantees the right to be free from unlawful search and seizure. But for every guarantee there is an exception. This exception, colloquially known as the border search exception, grants the United States government broad plenary authority to search people, luggage, mail, and vehicles at the border with essentially no level of suspicion. The border search exception was developed in an analog world; however, with the rise of smart phones and laptops, travelers now keep huge caches of digital information with them at all times. Several cases decided in 2018 highlighted disagreement between, and within, circuit courts about whether data collected at the border is subject to warrantless search when it is carried across the international border, and if so, what level of suspicion is required. The Supreme Court's changing composition leaves the future of digital data protection uncertain, but absent decisions to the contrary, this Comment argues that circuit courts should not continue to apply outdated caselaw to modern facts.
ISSN:0018-6694