New Law Review Article: Abidor v. Napolitano: Suspicionless Cell Phone and Laptop “Strip” Searches at the Border Compromise the Fourth and Fifth Amendments

Abidor v. Napolitano: Suspicionless Cell Phone and Laptop “Strip” Searches at the Border Compromise the Fourth and Fifth Amendments, Adam Lamparello & Charles E. MacLean, 108 Nw. U. L. Rev. Colloquy 280 (2014). Abstract:

Technology has outpaced the law, and the United States Supreme Court needs to do something about it — now. Every day at the border, an individual’s privacy — along with the Fourth Amendment’s particularity requirement and the First Amendment’s free speech guarantee — are being infringed. And for reasons having no relation to the outdated “border exception,” or the Government’s interest in security. With little more than a “hunch,” border security personnel can confiscate an individual’s laptop (sometimes, for days), force the owner to disclose the password, and conduct an unlimited search of (even copy) the contents for later investigation. They are not searching for contraband or dangerous weapons. They are fishing for evidence of any criminal activity — related or unrelated to border security — where there exists not a scintilla of suspicion that any crime has been committed. This bears no relation to the reasons that initially justified a “Constitution-free” zone 100 miles inland from the border. And it implicates some of our most cherished freedoms — privacy and free expression. Specifically, such conduct violates the Fourth Amendment’s reasonableness and particularity requirements, and threatens to chill political speech that is neither criminal nor suspicious. Think about it: a laptop is a virtual office, with the capacity to store thousands of files, troves of entertainment, and scores of intimate photos. If border officials could look in any “room” they pleased, people might think twice before storing a video critical of the President or of someone burning the American flag. That should not be tolerated in a country — and constitution — that embraces unpopular speech as an integral part of the marketplace of ideas. Until a more comprehensive policy is established, one thing should be clear: there are fundamental differences between the physical and virtual world, between searches of containers and laptops, and between present and future threats. Accordingly, before law enforcement officials conduct forensic searches of an individual’s lap top computer, reasonable suspicion should be required.