ABA President Linda A. Klein urged the Department of Homeland Security (DHS) this month to take steps to ensure that proper policies and procedures are in place during border crossings to prevent the erosion of important legal principles.
In a May 5 letter to DHS Secretary John Kelly and Acting General Counsel Joseph Maher, Klein expressed serious concerns about standards that permit U.S Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) officers to search and review the content of lawyers’ laptop computers, cell phones, 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 ABA understands and supports the critical role that DHS, CBP and ICE play in protecting our national security,” Klein wrote. “But just as border security is fundamental to national security, so too is the principle of client confidentiality fundamental to the American legal system.”
She explained that the ABA has consistently fought to preserve the attorney-client privilege, the work product doctrine and the confidential lawyer-client relationship. For example, the association worked with the National Security Agency (NSA) and other federal agencies in 2014 to ensure the confidentiality and attorney-client privileged status of lawyer-client communications intercepted or otherwise received during surveillance activities.
Those same concerns prompted the ABA in its May 5 letter to urge DHS to clarify Section 5.2 of the CBP Directive No. 3340-049 (Border Search of Electronic Devices Containing Information) and Sections 6.1 and 8.6 of the ICE Directive No. 7-6.1 (Border Searches of Electronic Devices). These directives have resulted in CBP officers and ICE special agents exercising sweeping powers to search electronic devices at the border, with or without reasonable suspicion of any wrongdoing.
Although the CBP and ICE directives include some requirements for special review and handling of materials that appear to be legal in nature or are identified as protected by attorney-client or attorney work product privilege, Klein expressed concern that these requirements are not sufficiently clear or comprehensive.
She pointed out that courts have generally permitted “routine” cursory border searches of travelers’ computers and other electronic devices as an exception to the Fourth Amendment prohibition against warrantless searches without probable cause, but the Ninth Circuit has concluded that an intrusive forensic search of a computer hard drive is not “routine” and requires reasonable suspicion to be permissible. Klein also cited legal precedent from the Southern District of Texas concluding that during routine border searches, customs officials may not take the “nonroutine step” of reading an attorney’s privileged documents without a warrant or subpoena.
She suggested that DHS provide explicit written guidance to CBP and ICE officials stating that when a lawyer is traveling across the border with a device identified as containing privileged or confidential client information, the device can be subjected only to a routine cursory physical inspection and the electronic documents on the device cannot be read, duplicated, seized or shared unless the officials first obtain a subpoena based on reasonable suspicion or a warrant supported by probable cause.
In addition, Klein urged that the directives be revised to clarify the specific standards and procedures that CBP and ICE agents must follow before the contents of a lawyer’s electronic device can be searched or seized at the border.