Regular travelers are familiar with the protocols of international travel, such as complying with various countries’ requirements regarding possession of liquids or certain agricultural products. But what is an attorney to do if a customs agent asks to peruse the attorney’s smart phone? Or if a customs agent asks the attorney to identify the clients that attorney is meeting or working on behalf of in the foreign country? Such questions can create a tension for attorneys between their duty to comply with international travel directives and their duty to preserve confidential or privileged client information in their possession.
Whether international travel is required to conduct meetings, close international deals with foreign clients or participate in an international arbitration, trips abroad are becoming more common across various practices. As a result of the concerns over potential violations of attorney-client privilege at borders and airports, the American Bar Association, in a 2017 letter to the U.S. Department of Homeland Security (DHS) urged DHS to modify and clarify the relevant directives and to adopt “standards and procedures that CBP and ICE agents must follow before the contents of a lawyer’s electronic device can be searched or seized at the border.”
Thereafter, the DHS and ABA held a meeting to address the ABA’s concerns. On January 4, 2018, the U.S. Customs and Border Protection (CBP) issued a revised directive for border searches of electronics that incorporated some of the ABA’s recommendations. Border officers are now required to consult with CBP’s senior counsel before searching devices containing privileged or work-product protected material. Further, under the new policy, officers are required to segregate privileged materials from other information. Notably, the directive also clarified that only material stored on the device may be searched; information stored in the cloud should not be accessed. The ABA’s then-President commented that while the revised directive is a step in the right direction, “more clearly needs to be done.”
Further, last year, members of the ABA Standing Committee on Ethics and Professional Responsibility issued an electronic device advisory providing recommendations to traveling attorneys.
Some of the ABA’s recommendations are:
- Consider obtaining a new but inexpensive electronic device. Place only necessary information on the device, and minimize or avoid placing confidential information on the device.
- Before approaching a border inspection area, consider placing electronic devices in “airplane” mode or having all Wi-Fi, Bluetooth and cellular connections terminated and disabled. Consider whether electronic devices should be powered down or locked.
- If subject to border inspection of electronic devices, determine whether the officer is making a “request” or a “demand” for inspection.
- Consider whether the Rules of Professional Conduct in your jurisdiction of licensure would permit you to consent to a “request” for inspection, or to accede to a “demand.”
Notably, attorneys are not required by the rules of professional conduct to comply with these recommendations. Whether attorneys adopt these recommendations in their own practices will depend on the type of information attorneys have in their possession, as well as the reasonableness of taking certain precautions.
Given the complexities surrounding border searches, provided below are some tips for attorneys to consider when traveling abroad.
Evaluate the Necessity of Traveling with Electronic Devices
Some attorneys may be able to travel without electronic devices—this would completely eliminate any potential risks that privileged or confidential information on an attorney’s electronic device would be disclosed. This option may be optimal for attorneys who have access to secure visitor laptops and/or desktops that are provided by the firm or company in the foreign jurisdiction.
For most attorneys, however, it is impractical or impossible to travel without electronic devices, given their integration in the contemporary legal practice. Those attorneys may consider limiting the number of electronic devices that have confidential or privileged information in their possession while traveling. The fewer devices, the less likely it is to inadvertently provide access to privileged information.
Consider Two-Step Verification and Encryption
If leaving electronic devices behind proves infeasible, attorneys may consider various methods to ensure privileged and confidential data is not accessible by others. The chosen method of protection may depend on the nature of the confidential and privileged information within the attorneys’ possession. Many firms have computer systems that require two-factor verification (also known as two-factor authentication), which can provide an additional layer of security to ensure that only authorized individuals are able to gain access to client documents and information. Further, many law firms utilize databases that allow privileged and confidential documents and information to be securely stored within the system rather than the laptop itself.
If attorneys choose to travel with privileged and confidential documents stored internally on their devices, they may consider encryption as a practical protective measure. Law firms’ IT departments may be able to provide assistance in this regard. It is critical to create a strong password to access the device to ensure that encrypted files remain protected.
Consider Asserting a Privilege Objection
Consistent with the CBP’s revised directive, if stopped at the border by an agent who requests access to an attorney’s electronic advice, attorneys may identify themselves as members of the legal profession (e.g., provide business card or bar admission card) and advise the border agent that the device contains confidential and/or privileged information that is protected under U.S. law. If, despite best efforts, the disclosure of privileged or confidential information appears imminent, attorneys may object to the search on privilege grounds. Specifically, attorneys can:
- Advise the border agent that the requested search is nonroutine;
- Instruct the agent not to read privileged documents; and
- Request that the agent consult chief counsel to determine whether a warrant or subpoena must be sought.
These steps also comport with Looper v. Morgan, Civ. No. H-92-0294, 1995 U.S. Dist. LEXIS 10241 (S.D. Tex. June 23, 1995) (holding that a warrant or subpoena is required to conduct a non-routine search that involves reading documents subject to a claim of privilege).
A privilege objection, however, may be inappropriate or unnecessary at the borders of certain countries, such as Canada. The propriety of such an objection will depend on the facts and circumstances. For most attorneys, it is helpful to have your firm’s general counsel or other risk adviser on speed dial to help evaluate the attorney’s duties and next steps (including to determine whether client disclosure is advisable).
Inform Affected Clients
If confidential information is disclosed, with or without a subpoena or warrant, an attorney’s immediate next steps may be to advise the affected clients regarding such disclosure. Prompt disclosure can help to mitigate the risk of any collateral damage (i.e., the filing of a malpractice lawsuit or bar complaint).
While the issue of border control is a sensitive and evolving issue, attorneys have several options to balance their obligation to maintain privilege and confidentiality with state interests in reviewing electronic devices.
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