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The Innovation of Litigation.

Protecting attorney-client privilege across the border: what you need to know about U.S. border searches of electronic devices

Attorneys are likely to carry at least one electronic device containing attorney work product and confidential client information. While attorneys always have a duty to protect this information, crossing international borders makes this duty a bit more complicated. For those attorneys who cross borders, this post provides a quick summary of the current Department of Homeland Security, Customs and Border Protection policy and jurisdictional case law regarding U.S. border searches of electronic devices so that they can best protect their work product and confidential client information.

If you are an attorney traveling for work or pleasure, it is likely that you will be carrying an electronic device such as a laptop, phone, or tablet. Whether the device (or devices) are for personal use, for work, or both, one of them probably contains some attorney work product or confidential client information. And while you know the importance of keeping these devices secure in order to protect this information, you are also aware that the risk for discovery of this information increases every time you cross an international border. This post seeks to mitigate those risks by providing you with a quick summary of current U.S. Customs and Border Protection (CBP) policy and case law so that if you find yourself being asked by a federal agent to turn over your phone or laptop at the border, you know how to properly protect the privileged content on your device.

U.S Customs and Border Protection Policy

The current Customs and Border Protection policy regarding border searches of electronic devices is CBP Directive 3340-09A, issued in January 2018. According to the policy, border officers may conduct a basic (or routine) search of an electronic device at any time. This consists of reviewing and analyzing information contained on the device itself and may also entail you handing over passwords to unlock and decrypt the device and files. The basic search does not authorize border officers to use the device to access information stored remotely (such as in the cloud). Nor does the basic search authorize the border officer to conduct a forensic examination via an external extraction or exploitation device or software.

The policy treats forensic searches of digital devices as advanced (or nonroutine) border searches. A forensic examination generally requires a digital copy of the device’s data to be created and extracted from the device, and these searches may be conducted only with reasonable suspicion of activity that violates the customs laws or in cases raising national security concerns.

CBP Special Procedures for Privileged Information

In the case that border officers do search one of your electronic devices, then special procedures apply when individuals (note that this doesn’t only apply to attorneys) assert attorney-client privilege or the attorney work product doctrine. Border officers that encounter electronic devices with privileged information should seek clarification regarding the types and names of files from the owner of the device in order to properly identify the privileged information. Before any searches are conducted, the Officer will also contact the U.S. Customs and Border Protection Associate/Assistant Chief Counsel’s office in order to coordinate and ensure the segregation of any privileged information from other information examined during a border search. More details are contained in the policy regarding the procedures to be followed post search and examination of the electronic device.

SCOTUS General Border Search Exception

Under the border search exception to the search warrant requirement, the U.S. Supreme Court has ruled that searches at the border don’t require any reasonable suspicion, probable cause, or warrant, on the theory that the government has a strong sovereign interest in regulating what enters and exits the country. Non-routine searches, by contrast, require reasonable suspicion. Non-routine searches include forensic examination of an electronic device.

Recent Circuit decisions

Fourth circuit. On May 9, 2018, the Fourth Circuit issued an opinion on border searches of electronic devices in United States v. Kolsuz. According to the Fourth Circuit, a forensic search of a digital phone must be treated as a non-routine border search, requiring some form of individualized suspicion. The Fourth Circuit did not rule on whether the cause required should be reasonable suspicion (as the Ninth Circuit held in Cotterman) or whether it should be a higher standard or a full warrant. The Court stated that the issue did not need to be reached because the good faith exception applies either way. The Court may have also added a “nexus” requirement, meaning that the justification for the search must be directly linked to the rationale of the border search exception, and cannot be justified for general law enforcement purposes.

Fifth circuit: The Fifth Circuit recently held that a non-forensic search of an electronic device based on the good faith exception did not violate the fourth amendment in U.S. v. Molina. It declined to address whether the border exception should continue applying to searches or electronic devices or whether a warrant should be required.

Ninth circuit. In United States v. Cotterman, a search conducted on a computer seized at the border requires reasonable suspicion if it is a “forensic” search but not if it is a “manual” search.

Eleventh circuit: In United States v. Vergara, the Court rejected the view that forensic searches at the border should require a warrant or probable cause. The Eleventh Circuit didn’t take a view on whether reasonable suspicion was required, because the defendant did not challenge that issue.

Conclusion

The case law regarding cross border searches of electronic devices continues to develop, with the most notable case being Allasad v. Neilsen. And while this post does not cover all of the issues regarding cross border searches of electronic devices, we hope it provides you enough information before your next trip.

For more reading on the constitutional issues regarding cross border searches of electronic devices, we recommend this blog post by Orin Kerr, which appeared in The Volokh Conspiracy. For good reading regarding your ethical responsibilities if your electronic device is searched at the border, we recommend Keith Fisher’s article, which appeared in the ABA’s Business Law Today.

If you have any tips regarding protecting electronic devices during international travel, please share with us.

About Trial by Tech

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