International Travel with a "Digital Briefcase": If Customs Officials Can Search a Laptop, Will the Right Against Self-Incrimination Contravene This Authority?

Abstract

This Comment stresses that the government's ability to conduct suspicionless laptop searches at the border is in significant conflict with an individual's right to withhold his laptop password. Accordingly, this Comment argues that because laptop password-protection could substantially impede the government's ability to protect our nation, an exception to the right against self-incrimination should be employed at the border.

Part II reviews general search and seizure doctrine and the border exception to the Fourth Amendment. Part III discusses the requisite elements necessary to invoke the Fifth Amendment right against selfincrimination and the application of the privilege to the compelled production of documents. Part IV explores the border search exception with respect to laptop searches, emphasizing the Fourth and Ninth Circuit decisions upholding the suspicionless search. Part V examines the possible constitutional protections applicable to passwords and the challenges to be faced by the government if Fifth Amendment privileges are available during a border search. Part VI suggests the creation of a border exception to the Fifth Amendment, similar to the current Fourth Amendment border search exception, which would effectively alleviate the potential threat to our country's national security. Part VII concludes the Comment and Part VIII is a Postscript discussing the most recent district court reversal of In re Boucher.