In fiscal year 2017, the Customs and Border Patrol (CBP) conducted 30,200 inbound and outbound border searches of electronic devices, compared to only 19,051 in fiscal year 2016. CBP agents reviewed all sorts of files, such as photos, social media messages, e-mails, and other private files on travelers’ computers, tablets, disks, drives, tapes, mobile phones, cameras, and media players.
Lawyers have been legitimately concerned about this seemingly unfettered access to their devices as they return to the United States, especially information protected by the attorney-client privilege. In May 2017, the American Bar Association (ABA), in a letter to the Department of Homeland Security (DHS), requested that CBP and Immigration and Customs Enforcement (ICE) directives be revised to preserve the attorney-client privilege, attorney-work product, and the confidentiality of lawyer and client communications during border crossings.
On January 4, 2018, CBP released Directive 3340-049A, Border Search of Electronic Devices, in which §5.2 et seq. set forth new procedures a CBP agent must use when encountering information protected by the attorney-client privilege. The process, however, is onerous and will certainly not be a speedy one. And ICE has not yet released its own directive discussing how its agents will handle privileged material.
Under the new CBP directive, travelers will still need to unlock or decrypt their devices, provide passwords if asked, and allow an agent to inspect the device and content stored on it. The agent, however, is not permitted to inspect information stored in the cloud unless he or she has reasonable suspicion of criminal behavior. The device may be detained if passcodes are not provided.
Attorneys traveling internationally should consider these issues and take steps to protect client confidential information stored on their electronic devices. The ABA has drafted an Electronic Device Advisory for its Mid-Year Meeting attendees that has some recommended actions attorneys can take with their electronic devices.