Report From Governmental Affairs
By Rhonda McMillion
As summer vacation approaches, lawyers traveling internationally with electronic devices will have greater privacy protections because of ABA advocacy. The government has revised its border search policies to include several reforms supported by the ABA to safeguard confidential client information.
Under previous Department of Homeland Security standards, officers with U.S. Customs and Border Protection and Immigration and Customs Enforcement could search and review the content of lawyers’ laptops, cellphones, tablets and other electronic devices at border crossings without any showing of reasonable suspicion.
Because these devices typically contain client information that is inherently privileged or otherwise confidential, the ABA urged the DHS to ensure that proper policies and procedures are in place during border crossings to prevent the erosion of these important legal principles.
In a May 2017 letter to DHS officials, the ABA acknowledged and expressed support for the critical role that the department, the CBP and ICE play in protecting national security. But “just as border security is fundamental to national security, so too is the principle of client confidentiality fundamental to the American legal system,” the letter stated.
After a meeting of department officials, ABA leadership and ABA Governmental Affairs Office staff, the CBP issued a revised directive on border searches of electronic devices in January that adopted several key ABA-requested reforms. Under the new policy:
- Border officers must consult with CBP senior counsels before searching any electronic devices allegedly containing privileged or protected material.
- Border officers and counsels are required to ask the individual asserting the privilege for specific file names, file types, attorney and client names or other identifiers that could help the CBP separate out and protect privileged information.
- The CBP must segregate privileged materials from other information on the device and ensure that privileged materials are handled appropriately.
- And any copies of privileged materials the CBP maintains must be destroyed at the end of the review process (unless they indicate an imminent threat to homeland security or copies are needed to comply with a litigation hold or other requirement of law).
The new policy also clarifies that Customs and Border Protection officers may only search the information stored on the physical device.
They are prohibited from accessing material that is only stored remotely, such as in the cloud. In addition, while CBP officers are authorized to ask the traveler for passcodes or other means needed to access information on the electronic device, records of those passwords must be destroyed when the search is completed.
Under the new policy, a CBP officer may conduct a “basic search” with or without suspicion, but an “advanced search” (defined as connecting the device to external equipment to review, copy or analyze its contents) may only be performed if there is reasonable suspicion of unlawful activity or a national security concern.
ABA President Hilarie Bass has been getting the word out about the new directive and its benefits.
“While not all of our proposals were adopted, and more clearly needs to be done, the new directive includes several new protections for privileged and confidential client information … and is a clear improvement over the prior policy,” she wrote to law firms in the PartnerUp email newsletter, which is designed to keep law firms apprised of the ABA’s advocacy activities.
As part of the association’s continued efforts to protect the legal rights of lawyers, clients and other travelers crossing the U.S. border, the ABA Criminal Justice Section recently established a new Task Force on Border Searches of Electronic Devices.
The task force plans to increase awareness of these issues and explore possible policy solutions.
This report is written by the ABA Governmental Affairs Office and discusses advocacy efforts by the ABA relating to issues being addressed by Congress and the executive branch of the federal government. Rhonda McMillion is the editor of ABA Washington Letter, a Governmental Affairs Office publication.ABA Journal with the title “Setting Boundaries: ABA advocacy prompts new protections for lawyers’ electronic devices at US border”.
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