What Have U.S. Courts Said?
The number of border searches of electronic devices has snowballed in recent years: CBP reported conducting 45,000 searches in 2022, compared with just 19,000 in 2016. Although the increased search activity has occasioned new legal challenges, the multiple federal appellate courts to consider CBP and ICE border policies have largely upheld them. Under their decisions, border agents are permitted to conduct manual searches of electronic devices without probable cause or individualized suspicion of criminal activity. And while some courts have been more circumspect about forensic searches—in some cases requiring reasonable suspicion and a nexus to a border-related rationale—that skepticism is not universal. Perhaps most tellingly of all, it was not until this year that any federal court had ever required a warrant for a border search of a digital device.
That changed in May 2023, when Judge Jed Rakoff of the U.S. District Court for the Southern District of New York held that the government must have a warrant to search an American citizen’s cell phone at the border. In United States v. Smith, Judge Rakoff reasoned that the principal purpose of robust border searches was to prohibit entry of physical contraband. Seizing digital data “contained” on a cell phone, however, would likely not stop its entry into the country, since much of the phone’s data is already externally stored in a U.S. server. Moreover, travelers would not reasonably expect to forfeit the privacy of the expansive (and often intimate) personal information typically found in one’s cell phone simply by taking the device on an international trip.
For years, activists have argued the same points: Searches of digital devices are not sufficiently tied to the traditional purpose of border searches to justify law enforcement’s access to a trove of sensitive data that, until this century, could never have been physically carried by a traveler even with the largest steamer trunk. Sharing these concerns, the Protecting Data at the Border Act—a bipartisan Senate bill proposed two years ago by Senator Ron Wyden of Oregon—would require probable cause of a felony to seize electronic devices and a judicially executed warrant to search them.
What Particular Concerns Do Lawyers Have?
Our hypothetical above takes place in Boston, where the First Circuit has allowed border agents to freely search any and all electronic devices with no suspicion needed even for forensic searches. But in allowing such searches, the First Circuit reserved the possibility of a different outcome if the government were using border searches to pierce the attorney-client privilege. This suggests that heightened caution may be warranted when the traveler bearing the device happens to be an attorney. Nevertheless, courts have provided little insight into how to protect privilege and work product during these border searches.
CBP and ICE policies presently permit searching devices containing privileged material, a risk flagged by the American Bar Association, which has urged the agencies to require warrants. Prompted by the ABA’s concerns, CBP policy instructs that if a traveler informs border agents that his or her device contains privileged material, agents should seek clarification about which particular files are at issue in order to “segregate” potentially privileged material during the search. Still, the public lacks clarity about how this approach would function in the case of an attorney’s devices, such as a work laptop consisting predominantly or entirely of privileged material and work product.
In addition, CBP’s policy calls for deletion of any copies of privileged materials that happen to be collected during a search. But exceptions to this direction allow privileged materials to be retained for national security concerns or “other legal requirement[s],” without further specification. And if CBP or ICE shares that information with another agency, that other agency’s retention policy governs the disposition of its copy. One can envision numerous logistical and technological hurdles in the event of inadvertent access, as the claw-back process for the return of protected files is uncharted. With the swell in border searches of electronic devices, international trips may involve a new headache about scrubbing current devices of privileged material or buying burners—not because of privacy risks while in another country but, rather, because of a lack of privacy while entering or exiting your own.