BY CANDACE M. GROTH
Do you use your smartphone for work purposes? Have you ever taken your smartphone or work laptop on vacation? Was that vacation in another country?
The rise of smartphone technology and ever-smaller computers and tablets has given attorneys greater access to their client files and confidential information from anywhere. But that increased connectivity presents new challenges, including the possibility that carrying your device across the U.S. border could result in a violation of Rule 1.6 of Professional Conduct or other ethics rules.
In the past few years, U.S. Customs and Border Patrol (CBP) has gone from completing approximately 15,000 border searches per year to over 32,000 in 2017.1 And the numbers are expected to be even higher in fiscal year 2018 through 2019.
The increase in border searches is already affecting attorneys.2 For example, Hector Ruiz, an attorney for an immigration-related legal aid and non-profit organization, was stopped one evening in December 2018 and held for four hours before he finally allowed CBP agents to search his smartphone. Similarly, Taylor Levy, a legal coordinator for a charity that operates on both sides of the southern border, was held for approximately three hours, asked repeated questions about his clients and political beliefs, and told he would be arrested if he did not answer the questions and unlock his phone to be searched by CBP agents. After he repeatedly asserted the material on his phone was confidential and subject to attorney-client privilege, Levy was ultimately released (with a warning that he might be subject to further searches every time he crossed the U.S. border).
Both Ruiz and Levy were stopped at the U.S. border pursuant to what is called the “border-search exception,” which permits U.S. agents to stop and in many cases search individuals without a warrant at the U.S. border, or within 100 miles of the border.3 The 100-mile border zone includes large swathes of the United States, including substantial urban areas. (Houston, Chicago, New York City, Washington, D.C., Los Angeles, and Seattle are all included in this border zone.) Almost the entire states of Michigan, Maine, New York, New Hampshire, Vermont, Massachusetts, Connecticut, New Jersey, and Florida are also included. In Minnesota, the 100-mile border zone stretches as far south as the northern Minneapolis-St. Paul suburbs. Neither reasonable suspicion nor probable cause is required for most searches at U.S. borders.
Wait, so CBP can search my device?
In a nutshell, (technically) yes. The CBP Directive, issued on January 4, 2018, states that:
Border searches of electronic devices may include searches of the information stored on the device when it is presented for inspection or during its detention by CBP for an inbound or outbound border inspection. The border search will include an examination of only the information that is resident upon the device and accessible through the device's operating system or through other software, tools, or applications. Officers may not intentionally use the device to access information that is solely stored remotely.4
As part of the border search, an individual may be required to provide passcodes or other information needed to access encrypted information. CBP, with certain supervisor approvals, can detain devices for five to 15 days (or more) even if the owner has departed the border.
The ABA, in response to concerns raised by its members, formally petitioned the CBP in May 2017 for clarification regarding its policies concerning border searches of attorneys and legal professionals.5 The CBP adopted regulations responding to this request in Section 5.2 of the 2018 Directive, which sets out specific procedures that CBP agents are supposed to follow when attorney-client or confidentiality privileges are asserted during a search.6 These procedures include CBP contacting the Associate/Assistant Chief Counsel office for assistance, segregating privileged materials through a “Filter Team,” and destruction of privileged materials upon completion of the search/review.
Attorney ethical obligations
Searches of attorneys’ devices at the U.S. border implicate several of the Minnesota Rules of Professional Conduct.7 These rules include:
- Rule 1.1: Competence, including maintaining the requisite knowledge and skill regarding technology;
- Rule 1.4: Communication, including the requirement to keep a client informed about his/her/its matter, which would include disclosures of client information during a border search; and
- Rule 1.6: Confidentiality, including that “a lawyer shall not knowingly reveal information relating to the representation of a client” except under certain limited exceptions.
For supervisors, managing partners, and similar individuals, Rules 5.1 and 5.3, related to supervision of other attorneys, paralegals, and staff, may also be relevant. Neither the Minnesota Rules of Professional Conduct nor the applicable Minnesota disciplinary authority have issued guidance regarding searches of attorney devices at borders, although some bar associations, such as the New York City Bar, have issued ethics opinions regarding the issue.
Practical tips for crossing the border
Searches of devices at borders (including those of attorneys) is almost certain to increase in the future. But there are some steps, in line with the Minnesota Rules of Professional Conduct, that you can take to protect your device and your clients’ information while crossing international borders:
(1) Eliminate or minimize the number of electronic devices that are in your possession when travelling, particularly those that have confidential or attorney-client privileged information. Some attorneys carry a separate device for international travel with only limited information on it.
(2) If an electronic device is necessary for a trip, take steps to minimize confidential and attorney-client privileged information stored on the device. You should keep in mind that the CBP directive states that only information on the device (not information solely in the cloud/offsite) can be searched. However, attorneys should take steps to minimize access to sensitive information, such as by removing and logging out of applications that allow access to cloud-based client file systems and/or internet-based phone systems.
(3) Before approaching a border area, consider placing electronic devices in “airplane” mode and/or disabling WIFI, Bluetooth, and cellular connections. Also consider whether you should power down and lock the electronic device. Do keep in mind that the CBP may require you to provide passcodes and similar information required to unlock or decrypt a device.
(4) If a CBP agent makes a request or demand to search your device, be prepared to identify yourself as an attorney, judge, or other legal professional and advise the agent that the device contains confidential and/or attorney-client privileged information. You may wish to carry your business card or bar licensure card.
(5) Remember that the CBP Directive instructs CBP agents to take certain actions in relation to information that is confidential and/or attorney-client privileged. However, you must actively assert that the information on your device is confidential and/or privileged.
(6) If, despite your best efforts, your device is searched by CBP agents, consult the Minnesota Rules of Professional Conduct and your firm’s general counsel or trusted ethics counsel regarding what additional steps, if any, should be taken, including client disclosures of the search.8
With these tips in mind, you can improve the chances that your next international vacation will have you finding some peace and tranquility, not searching for a good malpractice attorney.
CANDACE M. GROTH is a corporate attorney with the Dallas, Texas office of Minneapolis-based Virtus Law, PLLC. She regularly advises clients on cybersecurity, data privacy, and general corporate matters, with a focus in the technology, healthcare, and real estate industries.
NOTES
1 U.S. Customs and Border Prot., Dep’t of Homeland Sec., CBP Releases Updated Border Search of Electronic Device Directive and FY17 Statistics (1/5/2018), available at https://www.cbp.gov/newsroom/national-media-release/cbp-releases-updated-border-search-electronic-device-directive-and (last visited 7/1/2019).
2 Julia Ainsley, More lawyers, reporter stopped and questioned at border by U.S. officials, NBC Universal (3/18/2019), https://www.nbcnews.com/politics/immigration/more-lawyers-reporter-stopped-questioned-border-u-s-officials-n984256 (last visited 7/1/2019).
3 Tanvi Misra, Inside the Massive U.S. 'Border Zone', Citylab, The Atlantic Monthly Group (5/14/2018), https://www.citylab.com/equity/2018/05/who-lives-in-border-patrols-100-mile-zone-probably-you-mapped/558275/ (last visited 7/1/2019); Ryan Singel, ACLU Assails 100-Mile Border Zone As ‘Constitutional-Free’ – Update, Wired (10/22/2018), https://www.wired.com/2008/10/aclu-assails-10/ (last visited 7/1/2019).
4 U.S. Customs and Border Prot., Dep’t of Homeland Sec., Border Search of Electronic Devices, CBP Directive No. 3340-049A (1/4/2018), available at https://www.cbp.gov/sites/default/files/assets/documents/2018-Jan/CBP-Directive-3340-049A-Border-Search-of-Electronic-Media-Compliant.pdf (last visited 3/30/2019).
5 ABA urges Homeland Security Department to modify procedures for searching lawyers’ electronic devices at U.S. border crossings, Am. Bar Ass’n (10/12/2018), https://www.americanbar.org/advocacy/governmental_legislative_work/publications/washingtonletter/may2017/border/ (last visited /7/1/2019); Rhonda McMillion, ABA advocacy prompts new protections for lawyers' electronic devices at US border, ABA Journal (May 2018), http://www.abajournal.com/magazine/article/advocacy_protections_lawyers_border_search (last visited 7/1/2019); Letter from Linda A. Klein, President, American Bar Association, to General John F. Kelly, USMC (Ret.), Secretary of Homeland Security, and Joseph B. Maher, Acting General Counsel, Department of Homeland Security (5/5/2017), available at https://www.americanbar.org/content/dam/aba/images/government_affairs_office/attyclientprivissue(bordersearchesofattorneydevices%2cabalettertodhs%2cfinalversion%2cmay5%2c2017).pdf (last visited 7/1/2019).
6 There have been some assertions that these procedures are not being explicitly followed, including in the cases of Levy and Ruiz mentioned earlier in this article. However, the CBP Directive is still too new for cases to have wound through the court system and for case law to have developed around this issue.
7 Minn. R. Prof. Conduct, available at https://www.revisor.mn.gov/data/revisor/court_rules/pr/prcond-toh_2018-06-29_03-29-23/prcond-toh.pdf (last visited 3/30/2019); Am. Bar Ass’n, Electronic Device Advisory for Mid-Year Meeting Attendees (1/10/2018), https://www.americanbar.org/content/dam/aba/events/meetings_travel/scerp-electronic-device-advisory-djcbsg-1-10-18.authcheckdam.pdf (last visited 7/1/2019).
8 See Am. Bar Ass’n, Electronic Device Advisory for Mid-Year Meeting Attendees (1/10/2018), (providing some practical tips for attorneys crossing the U.S. border with digital devices); New York City Bar, Formal Op. 2017-5 (5/9/2019), available at https://s3.amazonaws.com/documents.nycbar.org/files/2017-5_Border_Search_Opinion_PROETHICS_7.24.17.pdf (last visited 7/1/2019) (discussing an attorney’s ethical duties regarding U.S. border searches of electronic devices containing clients’ confidential information).