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Document Type

Note

Abstract

In the recent challenge brought before the First Circuit, the court was not required to directly answer what level of particularized suspicion is required for a forensic search. Although, its holding is consistent with the jurisprudence set forth by both the Fourth and Eleventh Circuits. Furthermore, it is important to note that there have been legal challenges brought on this issue in the Fifth, Seventh, and Tenth Circuits. However, in each of these cases, the court chose not to decide the constitutional question because it was not outcome determinative for the litigants in question. This disagreement between the federal circuit courts gives rise to the subject of this Note. This Note will argue that as a matter of constitutional interpretation, the approach taken by the Eleventh Circuit is the correct approach. However, due to the highly deferential nature of this approach and its potential for abuse, this Note will also argue that Congress should act to create a statutory protection against these invasive searches. In Part I of this Note, the approach taken by the Fourth and Ninth Circuits will be analyzed alongside the standard of reasonable suspicion. In Part II, the approaches taken by the Eleventh and First Circuits will in turn be analyzed through a constitutional lens. Additionally, Part II will explain why the approach taken by the Eleventh Circuit has potentially detrimental effects and is ripe for abuse. Part III will outline what meaningful congressional action on this issue could look like. The goal of this exercise will be to create a constitutionally sound framework which protects the electronic privacy rights of all those under the jurisdiction of the United States.

Erratum

The editors recognize that the page numbers for this note need to be included. The preceding note by Simonitis (also being renumbered) will end on page 388; this note should be paginated as 389 through 427.

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