Article

Uncertainty Around Border Phone Search Standard Continues

Law360

20 Nov 2020

Alex Lawrence and Sara Stearns authored an article for Law360 covering the recent U.S. Supreme Court decision to deny certiorari in Williams v. U.S., a case in which the petitioner had asked the court to decide the level of suspicion required for a border agent to search an individual’s electronic device. Lower courts around the country disagree on what standard applies, and the Supreme Court decision means this uncertainty and inconsistency will continue.

“For now, the law remains unsettled, with circuit courts applying different rules when it comes to forensic searches of electronic devices – and with at least one circuit court requiring no reasonable suspicion at all,” the authors wrote, adding that they expect “at least two additional issues will arise” as lower courts grapple with the question presented in this case.

“First, courts will likely need to determine what constitutes a forensic search of an electronic device,” they write. “Is it correct, as the government contended in Williams’ case, that hacking into a device using forensic tools and manually reviewing the active files – rather than forensically restoring deleted files – is not a forensic search? Second, whatever qualifies as a nonforensic search, courts will need to assess the constitutionality of such searches. Nonforensic searches of devices currently require no level of suspicion but constitute a significant invasion of privacy.”

Read the full article.

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