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