July 31, 2017

Border Searches

ABA President Linda A. Klein and Governmental Affairs Office staff met with Department of Homeland Security (DHS) officials June 29 to discuss the association’s concerns about DHS policies that allow U.S. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) officers to search and review the content of U.S. lawyers’ laptop computers, cell phones, and other electronic devices without any showing of reasonable suspicion or probable cause. During the meeting with DHS Acting General Counsel Joseph Maher and John Havranek, Associate General Counsel for the DHS Operations and Enforcement Law Division, Klein noted that because lawyers’ electronic devices typically contain client information that is inherently privileged or otherwise confidential, the DHS policies threaten to undermine the confidential lawyer-client relationship and the clients’ right to effective counsel. Klein also reiterated a request from her May 5 letter to DHS that the department modify the CBP and ICE directives to state that when a lawyer crosses the border with a laptop or other electronic device and the lawyer states that the device contains privileged or client confidential files, the border officer may only conduct a physical inspection of the device and cannot read, copy or share the documents and files on the device unless the officer first obtains a subpoena based on reasonable suspicion or a warrant supported by probable cause. She also repeated her earlier request that DHS clarify the specific procedures that border officers must follow in these circumstances, including a requirement that they consult with the CBP or ICE chief counsel’s office before attempting to access any files on a lawyer’s electronic devices that the lawyer asserts are privileged or confidential. This change would be consistent with language in the National Security Agency’s (NSA) minimization procedures that requires consultation with NSA’s Office of General Counsel before disseminating privileged materials obtained during signals intelligence operations. DHS continues to study the association’s concerns and recommendations, and further discussions regarding the department’s border search policies and the attorney-client privilege are expected to continue between the ABA and DHS. 

 

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