Attorney-Client Privilege: Implications to Consider When Entering or Departing the United States

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Attorney-Client Privilege: Implications to Consider When Entering or Departing the United States

 

By Jeff Papa*

 

Introduction

 

Attorneys are charged with maintaining client confidences and guarding confidential information regarding such representation.  For example, the American Bar Association’s Model Rules of Professional Conduct require that a “lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent…” unless the disclosure is necessary to “…carry out the representation…,” or falls under one of a few limited exceptions (which include disclosure in order to “…comply with other law or a court order…”)1  This model rule also requires that lawyers “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”2 Lawyers in many foreign jurisdictions have similar obligations. This duty to prevent disclosure of client information may come into direct conflict with the searching of electronic devices by federal authorities when a lawyer is entering or leaving the United States.  While much of the statutory basis and case law discuss this issue as applied to aliens, it is important to note that the claimed authority also applies to U.S. citizens and permanent residents.

 

U.S. Customs and Border Protection 

The primary agency conducting searches of electronic devices is U.S. Customs and Border Protection (CBP), and these searches are primarily of electronic devices belonging to arriving passengers.  The number of these searches has increased dramatically over the past few years, from 8,503 in fiscal year 2015 to 19,033 in FY16 to 14,933 in the first half of FY17 (although relative to the number of arriving passengers, the searches amount to less than one hundredth of 1 percent of passengers).3  CBP asserts that “[n]o court has concluded that the border search of electronic devices requires a warrant, and CBP’s use of this authority has been consistently upheld.  This includes a review by the Fourth and Ninth Circuit Courts of Appeals, which approved the search of electronic devices encountered at the border.”4

 

CBP states that an individual may be chosen for inspection of an electronic device due to “a variety of reasons, some of which include: your travel documents are incomplete or you do not have the proper documents or visa; you have previously violated one of the laws CBP enforces; you have a name that matches a person of interest in one of the government’s enforcement databases; or you have been selected for a random search.”5 

 

If the CBP searches an electronic device, this may involve a search at the port of entry with the device being returned before the traveler leaves, or may involve temporarily retaining and then making available for return or indefinitely seizing (if evidence of a crime is found) the device, and may or may not involve CBP making a copy of electronic information found on the device.6

 

In its directive entitled “Border Search of Electronic Devices Containing Information,”7 the CBP provides guidance on the search and retention of inbound and outbound electronic devices.  This directive states that a CBP officer may review and analyze information on electronic devices “with or without individualized suspicion.”8 Such searches should be conducted in the presence of a supervisor (or if not practicable, then a supervisor should be informed as soon as possible),9 and searches “should be conducted in the presence of the individual whose information is being examined unless there are national security, law enforcement, or other operational considerations that make it inappropriate to permit the individual to remain present.”10  This directive also allows officers to retain an electronic device, or a copy of information it contains, in order to conduct a thorough search-although such retention requires supervisor approval.11

 

Attorneys who carry electronic devices may wish to consider what type of information that falls under attorney-client privilege exists on their devices before embarking on international travel. Data necessary for work meetings can be moved to cloud-based storage, for instance, to avoid any risk of exposing confidential information. Other measures, such as using clean devices for international travel, and determining in advance a personal or firm policy for disclosure of passwords to authorities if it’s requested, may be warranted. 

 

The CBP directive further states that, if after reviewing the information, no probable cause is found, the information must be destroyed within certain timeframes and the device must be returned.12  However, CBP is allowed to retain information related to customs and immigration without probable cause, or any information if CBP determines there is probable cause to believe there is evidence of a crime.13  The directive allows any information obtained consistent with its terms to be shared with “federal, state, local, and foreign law enforcement agencies to the extent consistent with applicable law and policy.”14 A related directive of U.S. Immigration and Customs Enforcement (ICE) regarding its border search procedures contains similar provisions.15

 

Statutory and Constitutional Authority for Border Searches 

 

CBP claims legal authority to inspect, search, and detain “[a]ll persons, baggage, and merchandise arriving in, or departing from, the United States.”16  CBP bases this authority, in part, on 8 U.S.C. 1357, and 19 U.S.C. 1499, 1581, 1582.  This federal law grants immigration officers and employees the power, without a warrant, to interrogate aliens, make arrests related to aliens, and to search “without warrant, of the person, and of the personal effects in the possession of any person seeking admission to the United States, concerning whom such officer or employee may have reasonable cause to suspect that grounds exist for denial of admission… which would be disclosed by such search.”17

 

The provisions of Section 19 of the U.S. code require that imported merchandise not be released from customs custody until it has been inspected, appraised or examined,18 the authority to search vessels and vehicles and any person or contents thereof,19 and the power of the Secretary of the Treasury to “prescribe regulations for the search of persons and baggage… and all persons coming into the United States from foreign countries shall be liable to detention and search by authorized officers or agents of the Government under such regulations.”20

 

The Fourth Amendment to the United States Constitution states that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.”21 While this generally requires probable cause and a warrant prior to a search, one exception to this is the Border Exception to the Fourth Amendment. This “exception” is actually an application of the text of the Fourth Amendment: this constitutional protection applies only against “unreasonable” searches and seizures, and searches conducted at the border (and its functional equivalent, such as international airports) have been considered reasonable, even absent probable cause.  

 

In Carroll v. United States, the Supreme Court stated that “[t]ravelers may be so stopped in crossing an international boundary because of national self-protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in.”22 In United States v. Ramsey, the Supreme Court further determined that the government’s power to regulate searches of persons or packages at the border operated on different constitutional law from domestic concerns, and that Art. I, Sec. 8 of the Constitution gives Congress broad power to regulate commerce with foreign nations in this regard.23  The court declared that “[b]order searches, then, from before the adoption of the Fourth Amendment, have been considered to be “reasonable” by the single fact that the person or item in question had entered our country from outside.”24

 

In some cases, the government may even be authorized to conduct warrantless searches beyond the border or its functional equivalent, if it believes the border was crossed, it is reasonably certain the object of the search hasn’t been materially altered since crossing the border, and that there is reasonable suspicion of related criminal activity.25 Under this doctrine, “[s]earches are reasonable under the extended border doctrine when officers have a reasonable certainty that any contraband found on a suspect was not obtained after the border crossing.”26

 

Courts have generally agreed that this ability to search effects at the border extends to electronic devices, with some courts holding that this power is virtually unlimited, and others holding that some reasonable suspicion is required if the search will be a forensic search (a search utilizing algorithms or sophisticated tools to search the device, rather than a simple manual search).27 At least one court has ruled that border searches should be judged under a totality of the circumstances test for reasonableness.28  Travelers should note that there is existing authority supporting the claim that this power to search at the border extends to departing travelers and effects, not just those arriving from abroad-and to government authorities beyond the CBP and ICE.29

 

The American Civil Liberties Union recently filed a lawsuit in U.S. District Court in Massachusetts challenging border searches of electronic devices without probable cause as unconstitutional.30 In this lawsuit, the ACLU alleges that various plaintiffs were detained, had devices searched manually and/or forensically with the aid of algorithms or other sophisticated tools, had devices retained, or were forced to disclose passwords under threat of seizure of the device, all absent probable cause that a device contained contraband or evidence of violation of laws related to customs or immigration matters.31  In short, the underlying interpretation of law that may be applied to the search, review, analysis, copying, or seizure of electronic devices and the information stored on them remains unsettled in U.S. courts.

 

Attorney-Client Privilege and Work Product at the Border 

 

CBP states that it “strictly adheres to all constitutional and statutory requirements… including those that are applicable to privileged, personal, or business confidential information… For example, the Trade Secrets Act…”32 Also, regarding information that may be protected by legal privilege, the CBP directive states that “[o]fficers may encounter materials that appear to be legal in nature, or an individual may assert that certain information is protected by attorney-client or attorney work product privilege. Legal materials are not necessarily exempt from a border search, but they may be subject to the following special handling procedures: If an Officer suspects that the content of such a material may constitute evidence of a crime or otherwise pertain to a determination within the jurisdiction of CBD, the Officer must seek advice from the CBP Associate/Assistant Chief Counsel before conducting a search of the material, and this consultation shall be noted in appropriate CBP systems of records. CBP counsel will coordinate with the U.S. Attorney’s Office as appropriate.”33 Further special handling and confidentiality concerns are noted regarding business and commercial information, Trade Secrets Act, the Privacy Act, medical records, and work-related information carried by journalists.34

 

The companion ICE directive states that all electronic devices are subject to a border search, and a claim of privilege does not prevent a search, although certain types of information are subject to special handling.35 The ICE directive notes no consent is ever needed from a device owner to conduct a search, but it also notes that special treatment may be accorded to business information, medical information, work-related information carried by journalists, and information subject to the Trade Secrets Act, Privacy Act, and other laws.36  Regarding legal information, the directive states that “[s]pecial agents may encounter information that appears to be legal in nature, or an individual may assert that certain information is protected by the attorney-client privilege or attorney work product privilege. If special agents suspect that the content of such a document may constitute evidence of a crime or otherwise pertain to a determination within the jurisdiction of ICE, the ICE Office of the Chief Counsel or the appropriate U.S. Attorney’s Office must be contacted before beginning or continuing a search of the document and this consultation shall be noted in appropriate ICE systems.”37

 

Linda Klein, president of the American Bar Association, recently wrote a letter to then-Homeland Security Secretary John Kelly and DHS Acting General Counsel Joseph B. Maher, expressing concern over standards that permit CBP and ICE to search and review the contents of lawyers’ electronic devices.38 Klein specifically asked General Kelly to ensure that proper policies are in place to “preserve the attorney-client privilege, the work product doctrine, and the confidentiality of lawyer and client communications during border crossings, and to prevent the erosion of these important legal principles.”39 Klein further noted that at least one federal court has found that reviewing, taking or copying documents over an attorney claim of privilege constitutes a non-routine border search and requires a warrant or subpoena.40 

 

Klein asserted that the limited protections in the CBP and ICE directives are vague and insufficient.  She urged General Kelly to amend the directives to state that when a lawyer asserts privilege of electronic information during a border search, the device can only be subjected to a “routine cursory physical inspection” and the electronic contents may not be reviewed without a warrant or subpoena, and to clarify related policies and procedures.41 

 

Conclusion

 

It is clear that CBP, ICE, and other U.S. federal agencies claim broad, sweeping powers to examine, search, review, retain, and copy information from electronic devices crossing into and out of United States territory, with or without probable cause.  For attorneys, this can be particularly problematic, as their electronic devices often contain confidential client information protected by attorney-client privilege or work product rules.  Although both ICE and CBP policies appear to contain some level of safeguard for reviewing or retaining such information, the law is not settled in this area, and anecdotal information and concern from organizations like the American Bar Association indicate that attorneys should carefully consider this issue when entering or leaving the United States. 

 

At a minimum, an attorney should consider invoking attorney-client privilege and request a supervisor, as well as indicating that CBP or ICE need to check with their respective Office of Chief Counsel if they intend to search electronic information over which a claim of privilege has been asserted.  However, the result of these requests cannot be known in advance, and as a practical matter, attorneys may wish to limit their exposure to such searches by carrying clean or loaner devices with them across the border rather than a daily device with extensive detailed internal information, or leave unneeded devices at home during travel.  

 

Some indications exist that even where a detailed forensic search is allowed, this only extends to information physically stored on the device, not to remote or cloud-based storage, so utilizing the latter form of data access rather than physical memory may also be preferable for border crossings.  Attorneys may also wish to consider turning the device off well before reaching the border, to prevent easy access to information stored in the device’s temporary memory. Attorneys should also consider in advance their response to a demand to provide passwords to a locked device or file; refusal to provide such a password may lead to temporary or indefinite seizure of the device, but disclosure of the password grants access to the contents. 

 

This article should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.


1 American Bar Association Model Rule of Professional Conduct 1.6 (a-b), available at https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_6_confidentiality_of_information.html

 

American Bar Association Model Rule of Professional Conduct 1.6(c), available at https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_6_confidentiality_of_information.html

 

3  CBP Releases Statistics on Electronic Device Searches, U.S. Customs and Border Protection, April 11, 2017, available at https://www.cbp.gov/newsroom/national-media-release/cbp-releases-statistics-electronic-device-searches-0

 

4 Id.

 

5 Inspection of Electronic Devices, U.S. Customs and Border Protection, available at https://www.cbp.gov/sites/default/files/documents/inspection-electronic-devices-tearsheet.pdf

 

6 Id.

 

7 Border Searches of Electronic Devices Containing Information, U.S. Customs and Border Protection, CBP Directive No. 3340-049 (Aug. 20, 2009), available at https://www.dhs.gov/xlibrary/assets/cbp_directive_3340-049.pdf

 

8 Id. at 5.1.2.

 

9 Id. at 5.1.3.

 

10 Id. at 5.1.4.

 

11 Id. at 5.3.1.

 

12 Border Searches of Electronic Devices Containing Information, U.S. Customs and Border Protection, CBP Directive No. 3340-049 (Aug 20, 2009), 5.3.1.2, available at https://www.dhs.gov/xlibrary/assets/cbp_directive_3340-049.pdf

 

13 Id.at 5.4.1.

 

14 Id. at 5.4.1.3

 

15 Border Search of Electronic Devices, U.S. Immigration and Customs Enforcement, Directive No. 7-6.1 (Aug. 18, 2009), available at https://www.dhs.gov/xlibrary/assets/ice_border_search_electronic_devices.pdf

 

16 Inspection of Electronic Devices, U.S. Customs and Border Protection, available at https://www.cbp.gov/sites/default/files/documents/inspection-electronic-devices-tearsheet.pdf

 

17 8 U.S.C. 1357.

 

18 19 U.S.C. 1499.

 

19 19 U.S.C. 1581.

 

20 19 U.S.C. 1582.

 

21 U.S. Const. Amend. IV.

 

22 267 U.S. 132, 154 (1925).

 

23 431 U.S. 606, 619 (1977).

 

24 Id.

 

25 See Teng Yang, 286 F.3d. 940 (2002).

 

26 Id. at 946.

 

27  See, e.g., United States v. Irving, 452 F.3d 110 (2nd Cir. 2006); United States v. Romm, 455 F.3d 990 (9th Cir. 2006)

 

28 United States v. Kim, U.S. District Court for the District of Columbia, Crim. Action No. 13-0100 (ABJ) (2015).

 

29 See, e.g., United States v. Seljan, 547 F.3d 993 (9th Cir. 2008); United States v. Boumelhem, 339 F.3d 414 (6th Cir. 2003).  The U.S. Supreme Court has not weighed in directly, but it did decide (in a non-border search context) that it viewed digital searches somewhat different from physical searches in finding that the search incident to arrest exception to the warrant requirement does not apply to cell phone contents, and that such searches could be even more intrusive than a search of a person’s home.  See Riley v. California, 134 S. Ct. 2473 (2014).

 

30 https://www.aclu.org/print/node/65397, U.S. Dist. Ct. Mass, Complaint No. 1:17-cv-11730-DJC (2017).

 

31 Id.

 

32 Inspection of Electronic Devices, U.S. Customs and Border Protection, available at https://www.cbp.gov/sites/default/files/documents/inspection-electronic-devices-tearsheet.pdf  See also https://www.dhs.gov/policy

 

33 Border Searches of Electronic Devices Containing Information, U.S. Customs and Border Protection, CBP Directive No. 3340-049, 5.2.1 (Aug. 20, 2009), available at https://www.dhs.gov/xlibrary/assets/cbp_directive_3340-049.pdf

 

34 Id. at 5.2.2-3.

 

35 Border Search of Electronic Devices, U.S. Immigration and Customs Enforcement, Directive No. 7-6.1, 8.6 (Aug. 18, 2009), available at https://www.dhs.gov/xlibrary/assets/ice_border_search_electronic_devices.pdf

 

36 Id.

 

37 Id. at 8.6(2)(b).

 

38 L. Klein, Preservation of Attorney-Client Privilege and Client Confidentiality for U.S. Lawyers and Their Clients During Border Searches of Electronic Devices, May 5, 2017, available at:
https://www.americanbar.org/content/dam/aba/images/government_affairs_office/attyclientprivissue(bordersearchesofattorneydevices%2cabalettertodhs%2cfinalversion%2cmay5%2c2017).pdf

 

39 Id.

 

40 See Looper v. Morgan, Civ. No. H-92-0294, 1995 U.S. Dist LEXIS 10241 (S.D. Tex. June 23, 1995).

 

41 Id.


 *Jeff Papa, Ph.D., is a partner in the Labor and Employment Department in the Indianapolis office of Barnes & Thornburg LLP.  Mr. Papa can be contacted at jpapa@btlaw.com.

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Monday, November 20, 2017
Professional Responsibility / Ethics, Privacy / Use of Personal Information