International Travelers Beware–Digital Device Searches at the Border
March 16, 2017
International travelers traveling with electronic devices beware. In recent years, the number of electronic media searches at U.S. borders has increased dramatically. In fiscal year 2016, 390 million people entered the U.S., and 23,877 electronic media searches were conducted at the border. In fiscal year 2015 there were only 4,764.
This article provides an overview of (1) the U.S. Customs and Border Protection (“CBP”) authority to conduct searches at the border, (2) the evolving approach courts have adopted toward digital border searches, and (3) the rights of attorneys—including non-U.S. attorneys—at the border to assert attorney-client privilege. This article also provides recommendations as to what U.S. citizens and attorneys can do to protect their personal information.
I. Border Searches Are an Exception to the Fourth Amendment’s Probable Cause and Warrant Requirements
The Fourth Amendment to the United States Constitution protects individuals against unreasonable government searches and seizures.
Warrantless searches are conducted by federal law enforcement agencies, including CBP and the U.S. Immigration and Customs Enforcement (“ICE”), and are authorized by statute. Title 19 U.S.C.§ 1582 authorizes “the search of persons and baggage” and provides that “all persons coming into the United States from a foreign country shall be liable to detention and search by authorized officers or agents of the Government under such regulations.”
II. Digital Searches at the Border
In today’s digital era, courts have grappled with growing legal issues surrounding the search of electronic devices at the border, particularly whether such searches would be viewed as routine or nonroutine and whether reasonable suspicion is required. In recent years, courts have increasingly required “reasonable suspicion” due to the intrusiveness of digital searches.
The U.S. Court of Appeals for the Ninth Circuit’s decision in United States v. Cotterman exemplifies courts’ recent moves toward requiring reasonable suspicion.
Cotterman also represents a shift from the Fourth Circuit’s holding in United States v. Ickes, in which the court reasoned that computer searches were routine because computer files were indistinguishable from any other “cargo” subject to routine search and inspection at the border. Contrary to the holding in Ickes, Cotterman distinguished forensic searches of electronic devices from physical belongings by finding that forensic searches are quantitatively and qualitatively different from routine border searches of physical belongings.
The recent Supreme Court decision in Riley v. California
The Court ruled that “a warrant is generally required” before searching information stored on a cell phone seized incident to an arrest. Although the Riley case did not involve a border search, the Court’s conclusion that digital searches are inherently more intrusive than searches of physical objects—such as briefcases or notebooks—carries implications in the border context as well. Importantly, the Riley Court based its holding not on the nature of the data reviewed or the manner of the review, but instead on the fact that digital devices contain a vast quantity of data that are qualitatively and quantitatively different from what is typically found in other, analog objects.
Although Riley did not involve a border search, at least one court has applied the decision in rejecting the search of a laptop “as supported by so little suspicion of ongoing or imminent criminal activity, and . . . so invasive of [defendant’s] privacy,” that it was unreasonable.
Riley suggests that courts should treat searches of digital media differently from routine border examinations, which would point toward a “reasonable suspicion” requirement. However, that is not settled law, and, regardless of the test employed, the risk presented to confidential information stored in digital devices remains substantially higher at the border than in a wholly domestic context.
III. Attorney-Client Privilege at the Border
Border searches of lawyers carrying client confidential information raises unique privilege concerns. Although there appear to be no cases discussing privileged material in the context of an electronic border search, Looper v. Morgan addressed traditional searches of attorneys’ paper files at the border. The court in Looper held that privileged documents should be returned without the possibility of inspection, stating that “when a Customs official, in the course of a routine border search, seeks to take the nonroutine step of reading the contents of any document over an attorney’s objection that the document is privileged, Customs may not read the document without a warrant or subpoena.”
Despite courts’ recognition of attorney-client privilege at the border, CBP does not categorically exclude privileged materials from searches. The U.S. Customs and Border Protection Policy states that “[a]lthough legal materials are not necessarily exempt from a border search, they may be subject to special handling procedures. Correspondence, court documents, and other legal documents may be covered by attorney-client privilege. If an officer suspects that the content of such a document may constitute evidence of a crime or otherwise pertain to a determination within the jurisdiction of CBP, the officer must seek advice from the Associate/Assistant Chief Counsel or the appropriate U.S. Attorney’s office before conducting a search of the document.”
IV. Foreign Attorneys May Assert Attorney-Client Privilege
International matters often involve both U.S. and foreign attorneys, and U.S. companies and law firms increasingly maintain non-U.S. legal offices or outsource legal work to countries outside the United States. In addressing those scenarios, many courts have adopted a “touch base” approach to determine whether to extend U.S. attorney-client privilege to foreign attorneys. Using this approach, the court first decides whether the communication involves U.S. or foreign law and then reviews that applicable privilege law. U.S. law, and subsequently the extension of attorney-client privilege, governs communications involving U.S. issues; foreign law governs communications relating to matters solely involving foreign jurisdictions. The jurisdiction with the predominant interest is the location where the privileged relationship took place or the location in which that relationship was centered when the communication took place, unless application of foreign law would be contrary to the public policy of the forum.
V. Recommendations for Travelers and Attorneys at the Border
Encrypt everything. Evolving case law illustrates that courts are increasingly finding digital searches to be nonroutine, thereby requiring reasonable suspicion. The harder it is for a border official to extract data, the more intrusive the search becomes and the more likely it will be considered nonroutine and subject to a heightened threshold.
For attorneys targeted by border officials, the best course of action is to claim privilege clearly, loudly, and as soon as possible. It may be best practice to have a
Lastly, consider not bringing anything sensitive. If you do not have it, the government cannot get it.
If you have any questions regarding the rule or compliance with the new requirements, please contact a member of our Privacy & Cybersecurity Practice.
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