A record number of travelers are expected to take to the skies in 2025, and surely there will be many attorneys among them. Although passing through the Transportation Security Administration (TSA) and/or U.S. Customs & Border Protection (CBP) checkpoint(s) during domestic and/or international travel is almost certainly no one’s favorite activity, for attorneys it can present special ethical considerations. Lawyers have a professional obligation to protect their clients’ secrets and confidences, which they must balance against the searches they necessarily must face while traveling. Given that many (if not most) lawyers have client materials on their personal devices and computer laptops (and in some cases in paper form), this article is intended to assist lawyers traveling with attorney-client privileged materials to issue spot, plan for, and be prepared to address government interactions at security checkpoints, whether by land, air, or sea. Although many of the practice tips we speak of here concern U.S. border crossings, many of the pre-travel tips we identify and suggest, apply equaling—if not more—when crossing foreign borders.
Rule 1.6(c) of the widely-adopted ABA Model Rules of Professional Conduct provides that a “lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” Comment 18 to this Rule lists factors to be considered in determining reasonableness, including the:
Further, Rule 1.6(b)(6) permits an attorney to reveal information relating to the representation of a client to the extent that he reasonably believes it is necessary “to comply with other law or a court order.” Comment 15 to this Rule, however, makes clear that revealing such information cannot be considered necessary until the lawyer has “assert[ed] . . . all non-frivolous claims” against its disclosure and contemplated any available avenues for appeal.
Formal Ethics Opinion 2017-5 from the Association of the Bar of the City of New York Committee on Professional Ethics helpfully applied the local version of Rule 1.6 to the context of attorney travel, concluding that attorneys have an obligation—before they cross any borders—to assess the risk that client information will be breached, the potential harms that could result, and any safeguards that could be implemented. Because any disclosure of client information is presumptively harmful under the ethical rules, the Opinion suggested that attorneys consider not taking confidential client information across the border at all, such as by carrying blank “burner” phones or laptops or using software designed to securely delete information. Where confidential information is carried and disclosure is requested, however, the Opinion concluded that attorneys must take reasonable steps to avoid disclosure, such as by requesting that materials not be searched or copied or asking to speak to a supervisor. Importantly, the Opinion determined that reasonableness does not require attorneys to refuse searches of their devices to the point that they are denied border entry or taken into custody. Finally, the Opinion stated that attorneys have an obligation to promptly notify clients impacted by any disclosures that are made at the border so that clients can determine whether they should file a legal challenge.
Although the Fourth Amendment generally requires a judicial warrant before a search can be considered reasonable, this is not the case at the nation’s borders. As the Supreme Court put it in United States v. Ramsey, “[t]hat searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border should, by now, require no extended demonstration.” Indeed, courts have recognized that customs agents do not need probable cause or reasonable suspicion to conduct routine forensic searches of cellphones at the border, and that even non-routine searches need only meet the lower reasonable suspicion threshold. Although the line between routine and non-routine border searches defined in judicial opinions remains “somewhat indistinct,” what is clear is that CPB agents have extensive authority to search individuals crossing borders. Attorneys are not exempt from this authority.
Fortunately, CBP has recognized the legitimate need for attorneys to protect the attorney-client privilege during border crossings and issued a January 2018 Directive providing guidance on these issues. Perhaps most importantly, the Directive defines those searches CBP will consider as “advanced” ones and thus barred absent reasonable suspicion. Advanced searches are those “in which an Officer connects external equipment, through a wired or wireless connection, to an electronic device not merely to gain access to the device, but to review, copy, and/or analyze its contents.” Also notably, the Directive clarifies that border searches may not use portable electronic devices to access remotely-stored information (such as information on a firm server or the cloud), but only examine information that is resident upon the actual device and accessible through the device’s operating system or otherwise through other software, tools, or applications. To avoid accessing remote information, the Directive instructs Officers either to request that the traveler disable connectivity to any network (e.g., by placing the device in airplane mode), or, where warranted by national security or other considerations, themselves disable network connectivity. The Directive also states that “Officers should also take care to ensure, throughout the course of a border search, that they do not take actions that would make any changes to the contents of the device.”
In addition, the Directive provides enhanced procedural safeguards specific to claimed attorney-client privileged materials. It requires Officers to consult the relevant CBP Associate/Assistant Chief Counsel’s Office before searching any device as to which a claim of privilege is raised, and to “seek clarification, if practicable in writing, from the individual asserting this privilege as to specific files, file types, folders, categories of files, attorney or client names, email addresses, phone numbers, or other particulars that may assist CBP in identifying privileged information.” Armed with this information, CBP is to “ensure the segregation of any privileged material from other information examined during a border search” and the destruction of any copies thereof created from the search.
Attorneys should not assume that CBP’s Directive will implement itself or that the Officer an attorney encounters even knows of (or remembers) the Directive. Given that, immediately below are some concrete steps attorneys should keep in mind when they travel, especially across the U.S. border:
Before ever even arriving at the security check point (whether by air, land, or sea), another important takeaway is the benefit of storing client information remotely, as opposed to locally on a portable electronic device. Because CBP has made clear that remotely-stored information should not be accessed during border searches, attorneys can avoid concerns about disclosing client confidences when crossing the border (especially when entering a foreign country) by uploading needed content to web-based services and carrying “burner” devices that store little or no client information locally. When confidential electronic materials must be carried across borders, they should be clearly identified as attorney-client privileged with watermarks and/or legends and, if possible, segregated from non-privileged materials. Of course, attorneys should also have a fully-charged cell phone handy when going through border security so that colleagues (and/or counsel) can be consulted as needed.
Additionally, as the pandemic has taught us, international travel is not always essential to conduct depositions, investigations, or perform other legal tasks or meetings. In certain situations when the risks associated with border crossings is high—such as when traveling to certain foreign countries with high geopolitical tensions or where there is a history for a lack of respect for the rule of law or intellectual property protection—telephone and videoconferencing can be viable alternatives. As such, attorneys should consider whether avoiding border crossings—especially foreign border crossings—is advisable to avoid creating the possibility of search and seizure of attorney-client privileged materials. This is especially important because other countries may define attorney-client privilege differently (or not recognize it at all) and/or be less sensitive to it during border searches than the deliberate approach in the CBP’s Directive. Attorneys must weigh the costs and benefits of travel to safeguard their clients’ confidences and take steps to discharge their own ethical obligations, as Formal Ethics Opinion 2017-5 (discussed above) recommends.
With the summer travel season approaching, attorneys should remember that they have an ethical obligation to safeguard client secrets and confidences during their domestic and international travel. Although U.S. CBP is sensitive to the importance of the attorney-client privilege, it does have well-established enhanced searching powers at the border, and attorneys must be vigilant to ensure that the Officer they encounter follows those protocols, should it be necessary. By (i) limiting and segregating privileged materials stored locally on devices, (ii) insisting that remote information not be searched absent reasonable suspicion, (iii) asking to speak to a supervisor or member of the CBP Associate/Assistant Chief Counsel’s Office where necessary, and (iv) consulting colleagues or counsel as needed, attorneys can protect their clients and themselves from unwarranted invasions of the privilege at security checkpoints, especially international border crossings. Of course, counsel must be especially vigilant and mindful of protecting privilege when entering the borders of a foreign land, especially one that does not recognize and safeguard the attorney-client privilege in the same way as in the United States.
