August 24, 2018

ABA PartnerUp: Border Search Policy

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CBP Border Search Policy

In response to an ABA letter last May and our subsequent meeting with senior Department of Homeland Security (DHS) officials, U.S. Customs and Border Protection (CBP) issued a revised Directive on Border Search of Electronic Devices last week that adopts several key ABA-requested reforms. While not all of our proposals were adopted, and more clearly needs to be done, the new directive includes several new protections for privileged and confidential client information on lawyer laptops and cell phones and is a clear improvement over the prior policy.

Protection of Client Info

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Consistent with the ABA’s recommendations, the new CBP border search policy contains several useful clarifications and new procedures to protect client information on lawyer laptop computers, cell phones, tablets, disks, drives, and other electronic devices. For example, the new policy:

  • Requires border officers to consult with CBP senior counsels before searching any electronic devices allegedly containing privileged or work product protected material (The previous policy only required consultation if the material was “legal in nature” or allegedly privileged AND the officer suspected it may constitute evidence of a crime or relate to another matter within CBP’s jurisdiction.);

  • Requires border officers and counsels to seek clarification from the individual asserting the privilege as to the specific files, file types, attorney or client names, or other specifics that may assist CBP in identifying and protecting the privileged information;

  • Requires CBP to segregate the privileged materials from other information on the device and ensure that the privileged materials are handled appropriately;

  • Provides that any copies of privileged materials maintained by CBP must be destroyed at the end of the review process unless they indicate an imminent threat to homeland security or copies are needed to comply with a litigation hold or other requirement of law.

Other Key Changes in the New CBP Border Search Policy

The new CPB directive includes other significant changes from the previous policy. For example, it:

  • Clarifies that CBP officers may only search the information stored on an electronic device and prohibits them from accessing information that is only stored remotely, such as in the cloud;

  • Authorizes CBP officers to ask the traveler for the passcodes or other means needed to access information on the electronic device, but requires the passcodes or other means of access to be destroyed when the search is completed;

  • Clarifies that while a CBP officer may conduct a “basic search” with or without suspicion, an “advanced search” - defined as connecting the device to external equipment to review, copy, and/or analyze its contents - may only be performed if there is reasonable suspicion of unlawful activity or a national security concern.

In sum, while the new directive is a significant improvement over the prior policy, more changes are needed to fully protect client information during border crossings. The ABA will continue to urge DHS, CPB, and other agencies to further improve their policies by requiring border officers to obtain a subpoena based on reasonable suspicion or a warrant supported by probable cause before searching the contents of lawyer electronic devices.