INTERNATIONAL TRAVEL WITH ELECTRONIC DEVICES: LAWYERS BEWARE PART 1: INTRODUCTION AND LEGAL CONSIDERATIONS
INTERNATIONAL TRAVEL WITH ELECTRONIC DEVICES: LAWYERS BEWARE PART 1: INTRODUCTION AND LEGAL CONSIDERATIONS
JUSTICE DANIEL J. CROTHERS North Dakota Supreme Court
Crossing international borders presents a complicated problem for lawyers carrying electronic devices that contain information relating to the representation of a client. The problem is borne out of the conflict between a lawyer’ s ethical obligation to protect client confidences and the United States government’ s small but increasing efforts to search electronic devices. 1
Border Searches
During 2017, the United States Customs and Border Protection agency( CBP) searched the electronic devices of 30,200 inbound and outbound international travelers. 2 In 2016, 19,051 electronic devices searches occurred. 3 In 2015, 8,503 international travelers had electronic devices searched. 4 While overall these numbers represent searches of electronic devices in the possession of a fraction of a percentage of overall travelers, searches of devices owned by legal professionals can have legal and ethical implications.
On Jan. 4, the CBP issued a new Directive for border searches of electronic devices. This Directive, superseding one issued in 2009, applies to“[ a ] ny device that may contain information in an electronic or digital form, such as computers, tablets, disks, drives, tapes, mobile phones and other
18 THE GAVEL communication devices, cameras, music and media players.” 5
The Directive expresses CBP’ s claim of authority to conduct suspicionless border searches of all inbound and outbound travelers and their personal property, including electronic devices. CBP’ s Directive further states:
CBP’ s broad authority to conduct border searches is well-established, and courts have rejected a categorical exception to the border search doctrine for electronic devices. Nevertheless, as a policy matter, this Directive imposes certain requirements, above and beyond prevailing constitutional and legal requirements, to ensure that the authority for border search of electronic devices is exercised judiciously, responsibly, and consistent with the public trust. 6
Importantly, CBP notes,“ This Directive does not limit CBP’ s authority to conduct other lawful searches of electronic devices, such as those performed pursuant to a warrant, consent, or abandonment, or in response to exigent circumstances.” 7
While legal professionals likely cannot control whether a border search is conducted under authority of a warrant or in response to exigent circumstances, they can and arguably must control whether searches of electronic devices are conducted by consent or due to loss and abandonment.
According to the New York City Bar’ s opinion,“ CBP policy permits U. S. customs agents to review any information that physically resides on travelers’ electronic devices, including those of U. S. citizens, with or without any reason for suspicion, to demand disclosure of social media and email account passwords, and to seize the devices pending an inspection.” 8
The opinion further notes the legality of searching electronic devices at the border is unsettled, especially when the border agent does more than manually inspect the contents of an electronic device. The New York City Bar Opinion states:
The legality of a border search of an electronic device is apparently unsettled. See Abidor v. Napolitano, 10-cv-04059( E. D. N. Y. Dec. 31, 2013)( dismissing claims challenging authority of CBP and ICE to detain electronic devices at borders, even absent reasonable suspicion); United States v. Cotterman, 709 F. 3d 952, 965( 9th Cir. 2013)( border agents need reasonable suspicion of illegal activity before they could conduct a forensic search, aided by sophisticated software, of the defendant’ s laptop but a manual search of a digital device is“ routine” and so a warrantless and suspicionless search is“ reasonable” under the Fourth Amendment); United States v. Kim, 103 F. Supp. 3d 32, 52( D. D. C. 2015)( suppressing evidence found during a search of a laptop at the border after border agents made an exact copy of the laptop’ s hard drive and searched it with forensic programs). 9
The permissive scope of suspicionless border searches of electronic devices also