In response to concerns raised by the ABA last year, U.S Customs and Border Protection (CBP) issued a revised Directive on Border Search of Electronic Devices on Jan. 4 that adopted several key ABA-requested reforms.
The ABA contacted the Department of Homeland Security (DHS) in May 2017 about standards that permitted CBP and Immigration and Customs Enforcement (ICE) officers to search and review the content of lawyers’ laptop computers, cell phones, tablets and other electronic devices at U.S. border crossings without any showing of reasonable suspicion. These devices typically contain client information that is inherently privileged or otherwise confidential. The correspondence was followed by a meeting between ABA representatives and senior DHS officials last June.
Consistent with the ABA’s recommendations, Section 5.2 of the new CBP policy includes several useful clarifications and new procedures to protect privileged and work product protected client information on lawyers’ electronic devices. In particular, the new CBP policy:
● requires border officers to consult with CBP senior counsels before searching any electronic devices allegedly containing privileged or work product protected material;
● 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 the other information on the device and ensure that the privileged materials are handled appropriately; and
● 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).
The new search policy also 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; and 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.
ABA President Hilarie Bass announced the revised standard to law firm partners and general counsels through her “PartnerUp” campaign, a regular email communication program designed to keep law firms better informed about the association’s advocacy efforts. In her Jan. 12 communication, Bass explained that “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…and is a clear improvement over the prior policy.”
In addition, the ABA Center for Professional Responsibility issued an advisory paper on Jan. 10 explaining the new CPB policy to those planning to attend the ABA Midyear Meeting held this month in Vancouver, British Columbia, Canada. The advisory also summarized the principal rules in the ABA Model Rules of Professional Conduct that lawyers should consider when crossing the border with electronic devices containing confidential client information and noted several protective measures they may wish to take before traveling to the Vancouver meeting.
Previously, the New York City Bar issued Formal Opinion 2017-5 last July that expressed its views on lawyers’ ethical duties to protect client confidentiality during U.S. border searches of the lawyers’ electronic devices.
To further explore this issue and the broader subject of warrantless searches of travelers’ electronic devices at the U.S. border in general, the ABA Criminal Justice Section has established a Task Force on Border Searches of Electronic Devices. The section’s task force plans to develop a possible White Paper, ABA policy proposals, or other materials in an effort to protect the legal rights of lawyers, clients, and other travelers crossing the U.S. border with electronic devices.