Personal Data is not Digital Contraband: Why the Protecting Data at the Border Act is Needed

In Fiscal Year 2024, U.S. Customs and Border Protection (CBP) conducted over 46,000 warrantless searches at international borders, raising significant privacy concerns. This article examines the constitutionality of these searches, focusing on the federal government’s use of the “border search exception” to the Fourth Amendment, which traditionally allows warrantless searches at the border to safeguard national security. However, applying this exception to electronic devices, which store vast amounts of personal data, presents new challenges, for such electronic devices often reveal intimate details of an individual's life. The article critiques the government's use of such exceptions and the argument that constitutional rights are often diminished at the borders, asserting that warrantless searches of electronic devices undermine Fourth Amendment protections. As a possible solution, this article advocates for the passage of the Protecting Data at the Border Act, which would establish clear guidelines for the search of electronic devices and would otherwise require warrants for more invasive inspections of these electronic devices. By balancing national security and individual privacy rights, the Protecting Data at the Border Act would protect both individual liberties and border security, along with government interests.