In the next year or two, the Supreme Court is likely to decide how and whether the border search exception applies to digital devices?
But which cases should it take, and which issues should it decide?
A thread.
But which cases should it take, and which issues should it decide?
A thread.
The basic question is how and whether to apply the border search exception to the Fourth Amendment to computers.
That could break down into a bunch of sub-questions:
1) Does the exception apply *at all* to computers, or is it inapplicable under a CA v. Riley rationale?
That could break down into a bunch of sub-questions:
1) Does the exception apply *at all* to computers, or is it inapplicable under a CA v. Riley rationale?
2) If the exception applies, should courts draw a distinction between rules for "forensic" and "manual" searches, as the 9th Circuit has concluded?
3) If the exception applies, what standards of cause are needed to *start* a border search, either for manual, forensic, or both?
3) If the exception applies, what standards of cause are needed to *start* a border search, either for manual, forensic, or both?
4) Once a border search can start, how far can it go? That is, how extensive a search is permitted?
5) Bonus question: Depending on (4), are there possible limits on what evidence can be admitted, even if the search is permitted? Put another way, any limits on plain view?
5) Bonus question: Depending on (4), are there possible limits on what evidence can be admitted, even if the search is permitted? Put another way, any limits on plain view?
As I follow the caselaw, there is currently no split on (1); there's a split on (2), (3), and (4); and (5) hasn't been considered.
So what should the Supreme Court do?
So what should the Supreme Court do?
DOJ has filed a cert petition in Cano, which as i read it is just about (4), how far a search should go. It's a very certworthy issue, but it doesn't make much sense to take that without taking a companion case on prior issues like (2) and (3). supremecourt.gov/DocketPDF/20/2…
That is, it doesn't make a lot of sense to talk about the rules for how far a border search should extend when you have no idea when a border search should start. Given the split on the start question, you'd want to do that, too.
Maybe you could pair it w/ the CA1 op in Alasaad v. Wolf, maybe crafting the QPs as you need them to resolve the big questions (as Alasaad was more a challenge to the existing policies)? I don't know. cases.justia.com/federal/appell…
And there's no split on (1), at least yet, although I would guess there would be eventually. (5) is a pet issue of mine but hasn't been directly raised in the cases, as far as I know. (Hey, that's why it's a bonus Q!)
Anyway, given all the issues involved, it seems not entirely obvious what the right set of questions are and how to get them best presented for the Justices to resolve. My 2 cents, at least. As always, stay tuned. /end
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