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Fourth Amendment Exception Allows Customs to Search Personal Devices

Bradley International Airport now boasts direct service to Dublin, Ireland, Edinburgh, Scotland, and various destinations in Canada. Those entering and leaving the United States through Bradley and other international airports and border crossings should be aware of an important exception to the Fourth Amendment warrant requirement and the corresponding broad authority vested in U.S. Customs and Border Patrol (CBP) agents.

CBP agents can search cellphones, laptops and other electronic devices of those entering or leaving the country, regardless of citizenship and despite the vast quantities of extremely personal information stored on those devices. And CBP agents are searching more devices now than ever. Citing data provided by border patrol, the New York Times recently reported searches of electronic devices had quintupled from about 5,000 in 2015 to 25,000 in 2016.

Although the "border search exception" to the Fourth Amendment's warrant requirement is long-standing and well-recognized, recent advances in technology have raised new and significant privacy concerns. Unlike a short time ago when business travelers packed a few files relevant to their trip, almost all travelers now bring along a laptop, iPad or smartphone with the equivalent of several overflowing file cabinets of documents and data. An examination of any one of these devices could reveal more about a person's life than a search of every room of his or her home—and all without a warrant. Fourth Amendment jurisprudence has traditionally shifted to adapt to new technologies, as when the Supreme Court held in Kyllo v. United States , 533 U.S. 27 (2001), and United States v. Jones , 565 U.S. 400 (2012), that the use of thermal imaging devices and a GPS tracking devices, respectively, constitute a search and require a warrant. In keeping with the evolving interpretation of the Fourth Amendment, the historically broad scope of the border search doctrine, as applied to the warrantless searches of electronic devices, has rightly been called into question by judges and advocates. It is also subject to reassessment by virtue of the Supreme Court's recent decision in Riley v. California.

Republished with permission from the Connecticut Law Tribune.  Originally published here.

Read other articles in the series:

Restitution for the Corporate Victim.

Exploring the Boundaries of the Fifth Amendment.

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About this Author

James Glasser, partner, Wiggin and Dana

James I. Glasser is a Partner in the New Haven and New York offices of Wiggin and Dana and is Chair of the Litigation Department and Co-Chair of the International Trade Compliance Practice Group. Mr. Glasser represents clients in complex civil litigation and in investigations and prosecutions conducted by the Department of Justice, the Securities and Exchange Commission, FINRA, the State Department, the Commerce Department, State Attorneys General, and other federal and state regulators. He also conducts regulatory investigations to ensure compliance in  areas of law including: health care...

Joseph Martini, Internal Investigations, Wiggin and Dana Law Firm, Washington DC, New York

Joseph W. Martini, is a Partner and Chair of the firm's White Collar Defense, Investigations and Corporate Compliance Group. In 2014, 2015 and 2016, the White Collar Group was awarded the Litigation Department of the Year for Government Investigations and Corporate Compliance by the Connecticut Law Tribune. Mr. Martini, a member of the firm's Executive Committee, maintains offices in New York, Stamford, and Washington, D.C.

Mr. Martini is often retained by entities facing crisis situations to conduct internal investigations, and has regularly done so in the financial, health care, manufacturing, construction and defense industries. Mr. Martini also has experience representing clients in matters involving the United Nations, and before hospital boards of directors and hearing panels in connection with disciplinary matters and other administrative proceedings. He also advises educational institutions in connection with Title IX investigations.

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