Laptop Searches at the United States Borders and the Border Search Exception to the Fourth Amendment

Abstract

The border search exception to the Fourth Amendment allows broad discretion for United States customs officers to search the belongings of incoming and outgoing international passengers and their luggage. Although courts typically weigh the national security interest in the search against the privacy invasion caused by a potentially intrusive search,, most border searches are constitutional if they are either routine or preceded by reasonable suspicion. Border searches of passengers' laptop computers, including hardware, software, and any external storage devices, pose a constitutional issue. This Note argues that laptop searches not preceded by reasonable suspicion are intrusive because the search may invade upon personal, proprietary, or confidential information that a passenger expects to be kept private, even at the border. Furthermore, this Note argues that even those laptop searches that are preceded by reasonable suspicion may not be constitutional, because border searches must be limited in scope to that which may either confirm or disprove the preceding suspicion.