Client Confidentiality Threatened at the Border

In Riley v. California, the Supreme Court held that police must generally obtain a warrant before searching a cell phone, absent exigent circumstances. This ruling allowed smartphone users to breathe a sigh of relief knowing that the vast amounts of data that they have stored on their phones is protected by law. However, people may have failed to consider how the decision would be applied within 100 miles of the US border. At the border, “[r]outine . . . searches may be conducted without a search warrant, even in the absence of reasonable suspicion, because ‘[t]he Government’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border.’” Despite the Riley ruling in 2014, according to NBC, “[s]earches tripled from 857 in October 2015 to 2,560 in October 2016, rising to 2,595 in March 2017.”

Unfortunately, this exception, while originally effected to promote safety, now just promotes feelings of fear, violation, uncertainty, and imposes financial hardship on travelers. When border agents take a person’s electronic device, they may go through all the data contained on the phone. Officers have the ability to “review . . . social media accounts, work emails, call and text history, photos, and other apps.” The one limitation stipulated in a “Department of Justice internal bulletin” appears to be “remotely stored digital information” such as information on the Cloud. At first, the tradeoff between privacy and safety does not seem unreasonable. However, that is most likely because people do not immediately remember all the sensitive things that their phones may house. For example, phones may house texts “to loved ones”, information that collectively reveals personal “opinions”, and even “sensitive medical, legal, and financial information.”

It is important to note that this search can take place regardless of whether the device is locked with a pin or password. If the phone is locked, border agents will ask the person to give them the password or pin to unlock the phone. If met with resistance, they will arrest or detain the person until they comply. In one instance, after declining to turn over his phone, one US Citizen was immobilized by two officers (one holding his legs and another “squeez[ing] his throat from behind”) while a third took the cell phone out of his pocket.

Incidents like the one described above have now put the legal community on the defensive.

Given the uncertainty of electronic privacy when crossing the border, lawyers who travel internationally could potentially have confidential client information exposed during electronic searches.

To address rising concerns in the legal community about what this could, and would, mean for confidential client information, Association for Corporate Counsel in Virginia held a panel on September 19, 2017 to discuss the matter. At the panel, lawyers joked that aside from trying to encrypt files or delete them off phones before arriving at the border, they should resort to “tactics of 1990s drug dealers . . . burner phones.” It was also suggested that lawyers try to strip “emails of information . . . [and] wip[e] browser history.” Despite the lighthearted tone of the panel, there is still no clear solution to the matter of electronic search within 100 miles of the US border.

However, legal professionals may soon obtain some clarity on this issue. On September 13, 2017, Electronic Frontier Foundation (“EFF”) and the American Civil Liberties Union (“ACLU”), on behalf of 11 plaintiffs (“Plaintiffs”), filed a Complaint for Injunctive and Declaratory Relief against acting leaders of the U.S. Department of Homeland Security (“DHS”), U.S. Customs and Border Protection (“CBP”), and Immigration and Customs Enforcement (“ICE”). The indictment alleges that the Plaintiffs’ First and Fourth Amendment rights were violated when they had their “smartphones, laptops, and other electronic devices” searched and seized at the border without any probable cause to justify the border agent’s action. The Plaintiffs are asking, among other things, that the Court recognize and declare that their Fourth Amendment rights were violated, and enjoin the Defendants “from confiscating travelers’ electronic devices, to effectuate searches of those devices after travelers leave the border, absent probable cause that the devices contain contraband or evidence of a violation of immigration or customs laws, and . . . in such cases, promptly to seek a warrant to search the device.” Perhaps when this case is decided, lawyers will finally have some clarity with regards to exactly what privacy they, and their clients, may expect at the border.