is unsettled in the wake of a 2014 United
States Supreme Court decision. There, the
Court recognized in a search incident to
arrest case that cellular telephones should be
subject to special treatment because of the
vast amount of personal information they
store:
Cell phones differ in both a quantitative
and a qualitative sense from other objects
that might be kept on an arrestee’s person.
The term “cell phone” is itself misleading
shorthand; many of these devices are in fact
minicomputers that also happen to have
the capacity to be used as a telephone. They
could just as easily be called cameras, video
players, rolodexes, calendars, tape recorders,
libraries, diaries, albums, televisions, maps, or
newspapers. 10
Notwithstanding any uncertainty about the
scope of one’s Fourth Amendment rights
at the border, one thing is certain: CBP
clearly takes the position its agents can
search any electronic device crossing the
border. As their published documents state,
“In addition to longstanding federal court
precedent recognizing the constitutional
authority of the U.S. government to conduct
border searches, numerous federal statutes
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and regulations also authorize CBP
to inspect and examine all individuals
and merchandise entering or departing
the United States, including all types
of personal property, such as electronic
devices.” 11
The new 12-page CBP Directive provides
specific guidance to border agents on
how attorney-related information should
be handled. The New York City Bar
Association Ethics Opinion and other
commentators also offer advice for
precautions before lawyers undertake
international travel, and what to do if
inspection is requested. Those matters will
be the subject of the article published as
Part 2 in the next Gavel issue.
1. Neither I, nor the only ethics opinion I found, address
the complicated question regarding a lawyer’s obligation
to protect client information while in, or crossing
borders of, foreign countries. See N.Y. City Bar Formal
Op. 2017-5: “An Attorney’s Ethical Duties Regarding
U.S. Border Searches of Electronic Devices Containing
Clients’ Confidential Information,” at fn. 1. The New
York City Bar opinion suggests lawyers entering foreign
countries “familiarize themselves with those laws and
practices and determine what safeguards to adopt before
transporting clients’ confidential information abroad.” Id.
2. “CBP Releases Updated Border Search of Electronic
Device Directive and FY17 Statistics” ( January 5,
2018), available at https://www.cbp.gov/newsroom/
national-media-release/cbp-releases-updated-border-search-
electronic-device-directive-and.
3. Id.
4. “CBP Releases Statistics on Electronic Device
Searches” (April 11, 2017), available at https://www.
cbp.gov/newsroom/national-media-release/cbp-releases-
statistics-electronic-device-searches-0.
5. CBP Directive No. 3340-049A: Border Search
of Electronic Devices at § 3.2 ( January 4, 2018),
available at https://www.cbp.gov/sites/default/files/assets/
documents/2018-Jan/cbp-directive-3340-049a-border-
search-electronic-media.pdf.
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6. Id. at § 4. While containing a description of
procedures for handling electronic devices, the
document also states, “This Directive is an internal
policy statement of U.S. Customs and Border Protection
and does not create or confer any rights, privileges, or
benefits on any person or party.” Id. at § 8.
7. Id. at § 2.3.
8. N.Y. City Bar Formal Op. 2017-5 at 2.
9. Id. at n.7.
10. Riley v. California, 134 S.Ct. 2473, 2489 (2014).
701.239.8513
w w w.f o r e nsics.eid e b aill y.co m
11. CBP Directive No. 3340-049A: Border Search of
Electronic Devices at § 4.
WINTER 2018
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