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Customs, Immigration, And Rights: Constitutional Limits On Electronic Border Searches, Laura K. Donohue
Customs, Immigration, And Rights: Constitutional Limits On Electronic Border Searches, Laura K. Donohue
Georgetown Law Faculty Publications and Other Works
The warrantless search of travelers’ electronic devices as they enter and exit the United States is rapidly increasing. While the Supreme Court has long recognized a border-search exception to the Fourth Amendment’s warrant requirement, it applies to only two interests: promoting the duty regime and preventing contraband from entering the country; and ensuring that individuals are legally admitted. The government’s recent use of the exception goes substantially beyond these matters. U.S. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) are using it to search electronic devices, and at times the cloud, for evidence of any criminal activity, …
Functional Equivalence And Residual Rights Post-Carpenter: Framing A Test Consistent With Precedent And Original Meaning, Laura K. Donohue
Functional Equivalence And Residual Rights Post-Carpenter: Framing A Test Consistent With Precedent And Original Meaning, Laura K. Donohue
Georgetown Law Faculty Publications and Other Works
The Carpenter Court held that warrantless access to seven or more days of cell site location information (CSLI) constitutes a violation of the reasonable expectation of privacy that individuals have in the whole of their physical movements. But the grounds on which the Court drew a line characterize all sorts of digital records—including those at issue in Miller and Smith, belying the majority’s claim that the decision leaves third-party doctrine intact. Instead of avoiding Katz’s pitfalls, moreover, the Court emphasized voluntary assumption of risk, doubling down on the subjective nature of judicial determination. The decision will likely lead to …