Tips for taking confidential information across the border

In recent years, the number of electronic device searches at the border has skyrocketed as part of an increased focus on border security. As reflected by the wave of recent litigation, such searches can give rise to privacy issues with respect to any individual. However, for attorneys crossing the border, there can be additional complications, including unexpected ethical issues.

Technology now allows attorneys to have virtually every communication and document possessed by an entire law firm accessible through their electronic device. That can include client confidential information as well as many communications protected by the attorney-client privilege. Thus, when border agents seek to search devices that have access to such information, permitting a search could arguably lead to allegations that the attorney improperly disclosed confidential client information in violation of the applicable ethical rules.

Specifically, California Rule of Professional Conduct 1.6(a) provides that "A lawyer shall not reveal information protected from disclosure by Business and Professions Code section 6068, subdivision (e)(1) unless the client gives informed consent" or in other limited circumstances. Section 6068(e)(1) in turn requires that an attorney "maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client."

Thus, in the face of the compelled disclosure of information at the border, attorneys may face a dilemma regarding whether to turn over such information to the potential detriment of their clients. In 2017, the American Bar Association sought to address such a scenario in a letter to then Department of Homeland Security Secretary General John Kelly and Acting General Counsel Joseph Maher. The ABA urged DHS to adopt processes that would, among other things, prevent privileged or confidential information from being read, duplicated, seized or shared without a subpoena based on reasonable suspicion or a warrant supported by probable cause and to delineate what actions agents must take when faced with a privilege assertion.

Some local bar associations have also provided guidance to their members for handling searches at the border. For example, in July 2017, the Professional Ethics Committee of the New York City Bar issued Formal Opinion 2017-5 to address an attorney's ethical duties regarding U.S. border searches of electronic devices containing clients' confidential information. The opinion provides that, before crossing the border, attorneys must take "reasonable efforts" to protect confidential information and further outlined factors to be considered in evaluating whether "reasonable efforts" were taken.

In light of the significant publicity surrounding these issues, the United States Customs and Border Protection issued a revised Directive on Border Search of Electronic Devices in January 2018. The revised directive incorporated some, but not all, of the revisions and clarifications requested by the ABA. For example, CBP officers are now required to contact the CBP associate/assistant chief counsel office before searching a device when an attorney-client privilege is asserted. In addition, more detailed procedures were enacted for the handling of privileged material.

Courts have increasingly addressed challenges to border searches, and some courts have limited agents' ability to perform searches. For example, the 9th U.S. Circuit Court of Appeals recently held that, in order to perform a forensic cell phone search, border officials must reasonably suspect that the cellphone to be searched itself contains digital contraband. See United States v. Cano, 934 F.3d 1002, 1020 (9th Cir. 2019). Notably, the 9th Circuit recognized that other circuit courts had reached different conclusions when addressing the scope of cell phone searches that may occur at the border. See id. (citing United States v. Kolsuz, 890 F.3d 133, 143 (4th Cir. 2018) (noting that the 4th Circuit had gone further in approving cell phone searches for contraband not present at the border)).

In light of the continuing uncertainty surrounding border searches, attorneys can consider taking steps to prevent possible issues. Below are some tips.

Remove Privileged and Confidential Data

In today's world, leaving electronic devices at home may be unrealistic. However, one option that allows attorneys to still use their devices abroad is to remove all privileged and confidential documents and information from the device before traveling. In some instances, data can instead be accessed from the law firm's secure site at the foreign destination. If completely removing the data is not feasible, another option may be to encrypt the relevant files.

To proactively address the issue, some law firms have considered disabling email access on cell phones altogether on foreign travel and instead supply attorneys with "clean" laptops that connect to secure desktops while abroad. Whether such an approach is helpful may depend on the nature of the confidential information in the attorney's possession.

Notify the Border Official

The CBP's January 2018 directive implemented new procedures whereby the CBP officer is now required to consult with chief counsel when a privilege claim is asserted. The directive further states that the officer "shall seek clarification, if practicable in writing, from the individual asserting this privilege as to specific files, file types, folders, categories of files, attorney or client names, email addresses, phone numbers, or other particulars that may assist CBP in identifying privileged information." Thus, attorneys can attempt to protect client information by advising the officer of the presence of privileged information and by explaining the nature of the privilege.

Potentially Advise Clients

In the event that confidential information is disclosed in connection with a search (with or without a subpoena or warrant), the next step to consider is whether to inform the affected clients, which may be impacted by guidance provided by the applicable jurisdiction. For example, in Formal Opinion 2017-5, the New York City Bar indicated that attorneys should promptly inform clients regarding the disclosure of their confidential information.

In today's changing climate, it can be difficult to know what to expect when crossing the border. However, to the extent searches are performed, it is important for attorneys to be prepared to address any tension between their client obligations and the obligation to comply with federal law regarding border security. 