In a May 5, 2017 letter to the Department of Homeland Security (“DHS”), American Bar Association (“ABA”) President Linda Klein urged DHS to revise directives issued in 2009 to U.S. Customs and Border Protection (“CBP”) and Immigration and Customs Enforcement (“ICE”) to restrict searches and seizures of attorneys’ electronic devices when attorneys traveling across the border assert that a device contains privileged or confidential client information. The letter explains the ABA’s serious concerns about protecting “the attorney-client privilege, the work product doctrine, and the confidentiality of lawyer and client communications during border crossings and [preventing] the erosion of these important legal principles.”
Searches of electronic devices at the border have increased rapidly in recent years. In 2016, 390 million people entered the United States, and 23,877 electronic media searches were conducted at the border, while in 2015 only 4,764 searches were conducted. According to Ms. Klein’s letter, attorneys have reached out to the ABA to express concerns about maintaining the confidentiality of client information contained on electronic devices when crossing the border into the United States.
The letter expresses that Ms. Klein shares these concerns and stresses that “a cornerstone of our legal system—both civil and criminal—is the confidential lawyer-client relationship, which includes the lawyer’s strict ethical duty to preserve the confidentiality of communications with the client.” It explains that this duty encourages clients to communicate with lawyers in confidence, to seek guidance to conform their conduct to the law, and to identify and remedy problems with past conduct.
In light of the recent increase in border searches and the concern about border agents’ review of privileged and/or confidential legal materials, the ABA suggested that the CBP and ICE directives be revised to specifically address the handling of such materials. The ABA recommends that the policies specify that when an attorney is travelling across the border and asserts that an electronic device contains privileged or confidential client information, border agents should only perform a “routine cursory physical inspection” of the device. The policies should prohibit border agents from reading, duplicating, seizing or sharing any materials on the device absent a subpoena based on reasonable suspicion or a warrant supported by probable cause.
The ABA’s letter also urges DHS to clarify the procedures for border agents when confronted with a lawyer’s electronic device. Specifically, the letter states that the directives should: (1) give agents clear standards to follow before demanding a search of files on a lawyers’ device; (2) specify what conduct is expected of agents when a lawyer asserts the information on his device is protected by attorney-client privilege, work produce doctrine, or applicable rules of professional conduct; and (3) define when agents must consult with the CBP Associate/Assistant Chief Counsel, the ICE Office of the Chief Counsel, or the U.S. Attorney’s Office, including specifically requiring that the agent do so whenever a lawyer asserts that an electronic device contains privileged or confidential client information and the agent continues to seek access to that information.
