CBP operates with the “border search exception,” which allows searches and seizures at international borders and their functional equivalent (e.g., international airports) without a warrant or probable cause. Routine, suspicionless searches at the border are deemed “reasonable” per se, thus are not in violation of the Fourth Amendment’s proscription against “unreasonable searches and seizures.” More recently, this authority has been interpreted by Customs and the courts as extending to electronic devices.
Lawyers at the Border
Particularly for lawyers, the process is getting more and more perilous. Documents containing attorney-client privileged information previously were the lawyers’ sole concern. And a very big concern, too, as Customs asserts that it has the authority to read any documents in possession of a person entering the United States. It has often ignored opposing assertions of attorney-client privilege and Fourth Amendment rights, while pursuing the exercise of its almost unlimited authority to search for illegal materials.
Customs was slowed a bit in 1995 when Looper v. Morgan, Civ. No. H-92-0294, 1995 U.S. Dist. LEXIS 10241 (S.D. Tex. June 23, 1995), held that “the reading, duplication, or seizure of documents claimed to be privileged, over the objection of the attorney transporting them, is also a form of ‘nonroutine’ border search,” and therefore falls under the “nonroutine” exception to the border search rule. Looper also held that “when a Customs official, in the course of a routine border search, seeks to take the nonroutine step of reading the contents of any document over an attorney’s objection that the document is privileged, Customs may not read the document without a warrant or subpoena.”
Customs current policy is that, if a claim of privilege is made, or the searching officer believes the materials may be protected, he or she is required to consult with CBP Associate/Assistant Chief Counsel and, as appropriate, the U.S. Attorney’s Office before searching the material (see tinyurl.com/c2zhs73 and tinyurl.com/d7ruqvh). The policy does not address whether or not a warrant or subpoena must be sought, and this determination is presumably made by the government’s counsel.
Electronics at the Border
Electronic devices are the real problem today. The wealth of information on flash drives, laptops, smartphones, and tablet computers is staggering. These days, hardly anyone leaves the office for a trip abroad without two or more of these devices. And communication with the office, with clients, and about client matters, as well as preparing and examining documents—all of it is done on electronic devices that store the information. The result is a trove of information just sitting there, vulnerable to a Customs officer’s decision to search for any reason. The agency’s published policy on border searches of electronic devices is that officers can keep these devices for a “reasonable period of time,” including at an off-site location, and seek help from other government agencies to decrypt, translate, or interpret the information they contain. If travelers choose not to share a password for a device, the government may hold it to find a way to gain access to the data.
A recent appellate court decision supports Customs’ position that the search of electronic devices falls under the category of property searches and that the devices are functionally and qualitatively equivalent to other closed containers. Accordingly, the government states that it may open, log in, and search through all the electronic information stored on travelers’ electronic devices. The Ninth Circuit Court of Appeals agreed with the government’s position, holding that “reasonable suspicion is not needed for customs officials to search a laptop or other electronic device at the international border” (United States v. Arnold, 2008 WL 1776525 at *4 (9th Cir. 2008)). Other courts have similarly ruled.
Will There Be New Protections?
However, there may be some more help on the way. A decision is expected soon in Abidor v. Napolitano, filed in the Eastern District of New York, wherein the American Civil Liberties Union (ACLU), the New York Civil Liberties Union, and the National Association of Criminal Defense Lawyers have filed a lawsuit challenging the Department of Homeland Security’s (DHS) policy of searching, copying, and detaining travelers’ laptops, cell phones, and other electronic devices at the border, even when DHS has no reason to believe a search would reveal wrongdoing.
In House v. Napolitano, filed in the U.S. District Court of Massachusetts, another case being argued by the ACLU, Customs officials at Chicago O’Hare International Airport confiscated a laptop, camera, and USB drive belonging to David House, a computer programmer, and kept his devices for seven weeks. The plaintiff has challenged as a violation of the First and Fourth Amendments the prolonged seizure of his laptop computer and other electronic devices and the review, copying, retention, and dissemination of their contents. The plaintiff also alleges that the materials seized by the government contain confidential information identifying members and supporters of a political organization, the Bradley Manning Support Network, and that the defendants’ review, retention, and disclosure of that information intrudes on the right of associational privacy protected by the First Amendment.
The plaintiff seeks a declaratory judgment that the search and seizure violated the First and Fourth Amendments and an injunction requiring the defendants to return or destroy any seized data in their custody or control and to inform the plaintiff whether that data has been disclosed to other agencies or individuals. The Federal District Court in Massachusetts denied the government’s motion to dismiss the case, stating that the government did not need reasonable suspicion to search someone’s electronic devices at the border, but the power did not strip House of his First Amendment rights.
The judge in this case ruled on March 28, 2013, that the case could proceed, denying the government’s motion to dismiss.
Other Recent Developments
On March 8, 2013, the Ninth Circuit Court of Appeals held in United States v. Cotterman that computer forensic searches are akin to “virtual strip searches” and thus require reasonable suspicion (see tinyurl.com/czlzza6). The court also held that a “review of computer files” can occur at the border without reasonable suspicion, the “forensic examination” of a computer at the border requires reasonable suspicion because it is “akin to reading a diary line-by-line looking for mention of criminal activity—plus looking at everything the writer may have erased.” This decision cuts against the findings of other jurisdictions that suspicionless border searches are constitutional, and we have likely not heard the end of it.
Advice for Returning Lawyers
What is clear is that an attorney traveling with attorney-client data in the form of paper documents or electronic media or devices is subject to search for any reason upon entering the United States. Thousands of attorneys enter the United States daily with smartphones, laptops, and tablet computers. Customs can’t and doesn’t try to search them all.
But when Customs choose to do so, it can, and based on no suspicion at all. For lawyers, the best plan if targeted by Customs is to claim the privilege clearly—loudly, if necessary, and before witnesses, if at all possible. It may be necessary to point out Customs’ published practice with respect to claims of privilege. Customs officers come in all stripes, and many have no experience with claims of privilege. Furthermore, they are used to getting their way. Claims of privilege are certain to raise the hackles of most Customs officers. The best policy is to have nothing on your person or in your baggage that you cannot have the government know about. Remember, too, that the exceptions to privilege are many, and just knowing the facts can start the digging for those exceptions.