ELECTRONIC BORDER SEARCHES AFTER RILEY

Abstract

This thesis discusses the implications of the Supreme Court’s 2014 decision in Riley v. California for the search of electronic devices at the border, termed "electronic border searches." It explores the degree to which such searches continue to be constitutionally permissible and contrasts Riley’s categorical rule protecting electronic devices in the interior with the general search power granted the government at the border. Following an examination of the divergences among lower courts in applying Riley, it finds Riley has limited application to the conduct of electronic border searches and that they continue to be constitutionally permissible. This thesis also explores how the reasonableness of such searches can be maintained despite evolving technology and privacy perceptions. By examining other legislative and constitutional rules, it derives an approach for electronic border searches where powerful government interests and privacy concerns collide. The result is a view of electronic devices at the border as hybrid property—as both containers and novel “effects.” Accordingly, this thesis advocates a hybrid-scope-limited approach that tethers suspicion-less electronic border searches to the original rationale for the border search doctrine. It presents a bifurcated framework leading to a two-tiered, hybrid-scope-limited rule where distinct levels of intrusion into electronic devices at the border are tied to differential levels of suspicion.