Setting Boundaries

• Author: Rhonda McMillion
• Pages: 67-67

REPORT FROM GOVERNMENTAL AFFAIRS

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Your ABA

PHOTO ILLUSTRATION BY SARA WADFORD/SHUTTERSTOCK

Setting Boundaries

ABA advocacy prompts new protections

for lawyers’ electronic devices at US border

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 confi dential

client information.

Under previous Department

of Homeland Security standards,

offi cers 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 rea-

sonable suspicion.

Because these devices typically

contain client information that is

inherently privileged or otherwise

confi dential, the ABA urged the DHS

to ensure that proper policies and

procedures are in place during bor-

der crossings to prevent the erosion

of these important legal principles.

In a May 2017 letter to DHS offi -

cials, the ABA acknowledged and

expressed support for the critical role

that the department, the CBP and

ICE play in protecting national secu-

rity. But “just as border security is

fundamental to national security, so

too is the principle of client confi den-

tiality fundamental to the American

legal system,” the letter stated.

REDEFINED DIRECTIVES

After a meeting of department

offi cials, ABA leadership and ABA

Governmental Affairs Offi ce 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 offi cers must consult

with CBP senior counsels

before searching any

electronic devices allegedly

containing privileged or

protected material.

• Border offi cers and

counsels are required to

ask the individual asserting

the privilege for specifi c fi le

names, fi le types, attorney

and client names or other identifi ers

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 clarifi es that

Customs and Border Protection

offi cers may only search the infor-

mation 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 offi cers 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

offi cer may conduct a “basic search”

with or without suspicion, but

an “advanced search” (defi ned

as connecting the device to

external equipment to review,

MAY 2018 ABA JOURNAL || 67

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 benefi ts.

“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 confi dential client information …

and is a clear improvement over the

prior policy,” she wrote to law fi rms

in the PartnerUp email newsletter,

which is designed to keep law

fi rms 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. Q

This report is writ ten by the ABA

Governmental A a irs O c e and

discusses advocac y e or ts by the ABA

relating to issues bein g addressed by

Congress and the execut ive branch of the

federal government. Rhonda McMillion

is the editor of ABA Washington Letter, a

Governmental A airs O ce publication.