Lawfare: Summary: Circuit Split on Device Searches at the Border in US v. Touset by Grayson Clary:
More and more federal courts are confronting the question whether the government’s traditional authority to search persons and property at the border—without a warrant, and typically without any degree of individualized suspicion—extends to travelers’ electronic devices. Two circuits, the fourth and the ninth, have concluded that investigators need at least reasonable suspicion to conduct forensic device searches in light of the stark privacy interests at stake—interests the Supreme Court recognized in Riley v. California. On May 23, the Eleventh Circuit rejected that approach, ruling in United States v. Touset that suspicion is never required for device searches at the border and opening a circuit split that may draw the Supreme Court’s attention.
Two months ago, in United States v. Vergara, the Eleventh Circuit rejected a child pornography defendant’s argument that device searches require a warrant in the wake of Riley. In a brief opinion, the panel emphasized that Riley “expressly limited its holding to the search-incident-to-arrest exception.” Judge Jill Pryor stressed in dissent that Riley’s reasoning sweeps more broadly. The Supreme Court’s description of the privacy concerns raised by device searches applies as much to travelers as arrestees. And its key question in Riley—whether “application of the [warrant exception] to a particular category of effects would untether the rule from the justifications underlying the exception”—could be asked at the border too. The dissent emphasized that the border exception is usually grounded in the need to intercept contraband, a rationale that loses much of its force when applied to data that could just as well enter the country through the internet. But the court’s majority wasn’t moved by that reasoning.