Extraction, Retention, and Use: Applying Use-Restrictions to Fourth Amendment Forensic Electronic Device Search Doctrine at the Border

University of Chicago Legal Forum Volume 2024 Article 10 2025 Extraction, Retention, and Use: Applying Use-Restrictions to Fourth Amendment Forensic Electronic Device Search Doctrine at the Border Daniel Vicente Alayo-Matos Follow this and additional works at: https://chicagounbound.uchicago.edu/uclf Part of the Law Commons Recommended Citation Alayo-Matos, Daniel Vicente (2025) "Extraction, Retention, and Use: Applying Use-Restrictions to Fourth Amendment Forensic Electronic Device Search Doctrine at the Border," University of Chicago Legal Forum: Vol. 2024, Article 10. Available at: https://chicagounbound.uchicago.edu/uclf/vol2024/iss1/10 This Article is brought to you for free and open access by Chicago Unbound. It has been accepted for inclusion in University of Chicago Legal Forum by an authorized editor of Chicago Unbound. For more information, please contact . Extraction, Retention, and Use: Applying UseRestrictions to Fourth Amendment Forensic Electronic Device Search Doctrine at the Border Daniel Vicente Alayo-Matos † ABSTRACT Forensic electronic device searches are a formidable weapon in a border protection agents’ arsenal. Agents download the data from an electronic device and may store it for up to fifteen years, where it can be accessed by thousands Department of Homeland Security (DHS) agents with minimal controls. Annually, agents collect the forensic digital data of over 40,000 international travelers. The border constitutes an exception to typical Fourth Amendment protections against unreasonable searches and seizures, as officials may search individuals crossing the border without a warrant or reasonable suspicion. At least one circuit has held that the Fourth Amendment’s protections pose no limit on whose or what electronic data may be collected when a traveler crosses the international border. It is unacceptable to use the Fourth Amendment border exception to not only search, but also copy, retain, query, and share traveler data, with little evidence to support the action. Use of data gathered under the border exception should be limited to the purpose of the border exception: protecting the border. This Comment proposes that Fourth Amendment doctrine at the border should apply use-restrictions to properly balance individual privacy against the government’s deep national security interests. This Comment addresses the splintering doctrine between the First, Fourth, Ninth, and Eleventh Circuits regarding the Fourth Amendment limitations to performing forensic electronic searches at the border. Use restrictions consider each use of data—extracting, retaining, querying, and sharing—as a separate Fourth Amendment search, subject to a separate reasonableness analysis. This Comment will argue that applying such restrictions in the border context prevents the government from using data collected under a narrow exception for broader purposes that would otherwise require a warrant. † B.A., The Georgia Institute of Technology, 2019; J.D. Candidate, The University of Chicago Law School 2025. My sincere thanks to Professor McAdams for his command of the relevant legal scholarship and guidance during the writing process, along with the staff of The University of Chicago Legal Forum for their hard work and editorial support and especially Eva Nobel, who gave critical feedback that made this comment possible and emotional support that allowed its writer to complete it. 337 338 THE UNIVERSITY OF CHICAGO LEGAL FORUM I. [2024 INTRODUCTION Border Protection Agents enjoy almost unfettered discretion to confiscate a person’s belongings. This is because border searches constitute an exception to the Fourth Amendment’s requirement that government officials generally must obtain a warrant before conducting a search. Under the exception, courts permit, without any level of suspicion, full searches of mobile living quarters; 1 the dismantling of car gas tanks; 2 and, in southern states from Texas to Florida, the highly intrusive copying of cell phone data. 3 The power is not only wielded against foreigners. Any international traveler to or from the United States, citizen or non-citizen, faces the risk of forfeiting copies of all locally-stored personal data. This overreach into the data of citizens and noncitizens should prompt concern even among those who have nothing to hide. For example, following the U.S. National Security Agency’s (NSA) expanded access to citizens’ personal phone information, some NSA employees began “using secret government surveillance tools to spy on the emails or phone calls of their current or former spouses and lovers[.]” 4 United States Customs and Border Protection (CBP) similarly collects and retains highly sensitive data, like photographs and text messages, for up to fifteen years. 5 The Fourth Amendment search and seizure doctrine on data collection practices is unsettled, especially in the border search context. Employees of the U.S. Department of Homeland Security (DHS)—which include people who work for U.S. Immigration and Customs Enforcement (ICE) and CBP—currently have full access to electronic device data from forensic border searches. Forensic electronic device searches can involve a breadth of activities. 6 This Comment uses the term ‘forensic electronic device searches’ to refer to border agents seizing an electronic device, extracting all the locally stored data, copying it to a 1 See, e.g., United States v. Alfaro-Moncada, 607 F.3d 720, 732 (11th Cir. 2010). See, e.g., United States v. Flores-Montano, 541 U.S. 149, 155 (2004). 3 See, e.g., United States v. Touset, 890 F.3d 1227, 1233 (11th Cir. 2018). 4 See Alina Selyukh, NSA Staff Used Spy Tools on Spouses, Ex-lovers: Watchdog, REUTERS (Sep. 27, 2013), https://www.reuters.com/article/idUSBRE98Q14H/ [https://perma.cc/P4PTUXW8]. Congress has since implemented statutory restrictions to limit this practice and other intrusions into U.S. person’s privacy. See Brittany Adams, Striking a Balance: Privacy and National Security in Section 702 U.S. Person Queries, 94 WASH. L. REV. 401, 405 (2019). 5 Letter from Troy Miller, Acting Comm’r of U.S. CBP to Sen. Ron Wyden, at 2 (Jan. 24, 2023) [hereinafter CBP Letter]. 6 See United States v. Cano, 934 F.3d 1002, 1008–09 (9th Cir. 2019) (distinguishing between a “manual search of a cell phone” where an agent browsed the call log and wrote down information stored on it versus a “forensic cell phone search” where the agent used a software to download all data stored locally on the phone). 2 337] USE RESTRICTIONS ON ‘BORDER SEARCH’ DATA 339 database, and retaining it for future use, such as analysis, queries, or sharing. At least some travelers are selected at random for electronic searches. 7 This Comment argues that CBP’s electronic device search policy violates the Fourth Amendment because it fails to consider suspicion requirements for reasonable use of data after retention. In 2017, CBP conducted 30,200 electronic devic (...truncated)