Bar News - September 20, 2017
Opinion: Border Searches of Electronic Devices – Attorneys Beware
By: Mona Movafaghi
Attorneys must take special precautions when traveling abroad if their electronic devices are linked to work email and work product, as that information will also be subject to inspection if the device is searched.
Customs and Border Protection (CBP) has the authority to inspect, search and detain, “all persons, baggage, and merchandise arriving in, or departing from, the United States,” pursuant to 8 USC Section 1357, 19 USC Sections 1499, 1581, 1582 and 19 CFR Section 162.6.
CBP has the authority to search US citizens and permanent residents, in addition to non-citizens. CBP may ask you to turn over your electronic devices and to give your password so that they may search those devices. If you refuse, and you are a US citizen, CBP may detain your devices, and they might unlock and search them. CBP is supposed to call you to retrieve your devices within five days, but it often takes much longer. They may also make a copy of the data that is contained on your device. A search of your electronic devices could cause a breach of attorney-client confidentiality.
As you may be aware from the recent “checkpoint” on Interstate 93, and the subsequent arrest of 23 undocumented aliens and seizure of marijuana from US citizens, CBP also has the authority to search anywhere within 100 miles inland of a foreign border. Much, if not all, of New Hampshire falls within 100 miles of a foreign border, as both land and sea borders qualify.
Although CBP cannot force you to unlock your devices or to give over your passwords for email and social media, they can hold you for a period of time and then seize your devices if you refuse. Medical professionals, attorneys, journalists and others may argue that they have privileged information on their devices, but that does not guarantee that their electronic devices will not be searched.
Professionals whose electronic devices carry confidential and privileged information should consider carrying only a burner phone if traveling abroad, or de-linking their business accounts from all electronic devices when traveling. You may also consider de-linking from social media accounts when traveling if those accounts would draw particular attention to you or your clients.
The issue of constitutional protection under the Fourth Amendment is developing law. The number of searches being conducted by CBP has grown in the past few years. As attorneys, we are under an obligation to protect our clients’ confidential and privileged information. Each attorney must consider how best to do so when traveling. The search of electronic devices is also a topic you may want to discuss with clients that travel both for business or pleasure.
Mona Movafaghi is an attorney at Drummond Woodsum.