Business & Practice

The Risk of Border Searches for Lawyers (Perspective)

Aug. 22, 2017, 9:59 PM

Editor’s Note: The author is the Louis Stein Chair at Fordham Law School, where he directs the Louis Stein Center for Law and Ethics.

The public is accustomed to traveling, including internationally, with electronic devices (cell phones, laptop computers, etc.) that potentially store, or provide access to, vast amounts of personal information. As the Supreme Court recognized in a 2014 decision, Riley v. California, a cell phone holds “detailed information about all aspects of a person’s life,” and consequently “a cell phone search would typically expose to the government far more than the most exhaustive search of a house: . . . a broad array of private information never found in a home in any form – unless the phone is.”

Lawyers in particular have grown accustomed to traveling not only with their own information but with clients’ information – attorney-client emails, documents relating to legal representations, etc. Lawyers traveling internationally have been alerted to the risk – however remote – that they will be on the receiving end of warrantless, suspicionless border searches of their cell phones and computers, which could in theory lead to government review and capture of not only their own information but also clients’ confidential and privileged information.

The U.S. Customs and Border Protection’s recent response to a congressional inquiry was designed to allay some worries. The agency said that: (1) border searches of U.S. citizens’ electronic devices are “exceedingly rare,” (2) U.S. citizens carrying electronic devices are not barred from reentry (although their devices may be seized), (3) when agents conduct a search of an electronic device, it is ordinarily a “limited and targeted inspection” for evidence of, e.g., child pornography, illegal smuggling or terrorism, and (4) these inspections are limited to information residing on the devices, and agents do not try to use the devices to access information stored on remote servers. On the other hand, the agent may choose to detain a traveler’s electronic device, may ask the traveler to unlock the device, and may search a device at the request of another investigative agency.

With respect to clients’ attorney-client privileged and confidential information in particular, earlier government releases indicated that a border agent must seek an additional review or authorization prior to conducting a search of information that an attorney claims is confidential or privileged. The American Bar Association has expressed its concern and has organized various discussions of this subject.

The Supreme Court has said that searches at the border are ordinarily reasonable “simply by virtue of the fact that they occur at the border.” Consequently “[r]outine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant.” But the Court has left open whether some level of suspicion “is required for non-routine border searches such as strip, body cavity, or involuntary x-ray searches.”

It is uncertain whether some suspicion is generally required for a border search of a cell phone, and whether the answer depends on the extent of the search (quick look vs. extensive forensic examination), on whether the traveler is entering or leaving the U.S., on when or where the border search occurs, or on other factors. The law is developing in this area. It is also unclear whether the border agents must have greater justification to search a device containing attorney-client privileged information, when they are alerted to that fact.

Meanwhile, lawyers are cautioned to take care when traveling internationally with their clients’ confidential information. An opinion recently issued by the New York City Bar directed lawyers to avoid carrying confidential information across the border except where reasonably necessary and to take particular care with highly sensitive information, as well as to consider technological measures to avoid storing confidential information on electronic devices carried over the border. If customs agents seek to review electronically stored information, the opinion said, lawyers should avail themselves of available procedures to discourage agents from reviewing client confidences.

The risk of border searches may be eye-opening for the legal profession. It is usually lawyers’ clients, not lawyers themselves, who are targeted for government searches. And the tangible risk of being stopped or searched may have an impact on lawyers, as it has an impact on the communities that are the more typical targets.

For example, as then-federal judge Shira Scheindlin’s described regarding the impact of routine street-level stops and frisks of minority youth in NYC:

“While it is true that any one stop is a limited intrusion in duration and deprivation of liberty, each stop is also a demeaning and humiliating experience. No one should live in fear of being stopped whenever he leaves his home to go about the activities of daily life. Those who are routinely subjected to stops are overwhelmingly people of color, and they are justifiably troubled to be singled out when many of them have done nothing to attract the unwanted attention. Some plaintiffs testified that stops make them feel unwelcome in some parts of the City, and distrustful of the police.”

Border searches of lawyer’s electronic devices are not physically intrusive, they are unlikely to occur, and they are less likely to be race-based than urban, street-level stops and frisks. The possibility of a border search nevertheless hits closer to home for globe-trotting lawyers. Perhaps the bar’s concern will engender sympathy for those who suffer greater risks of arbitrary searches and seizures, and cause lawyers to think differently about the directions in which search-and-seizure law should develop.

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