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In an update to two earlier articles published in November 2017 and March 2018 with Bloomberg Law, two Seyfarth Shaw LLP attorneys discuss a recent Eleventh Circuit decision upholding forensic border searches of electronic devices without reasonable suspicion, and how the court’s decision could potentially impact attorneys’ ethical obligations to safeguard client confidences when traveling abroad for work. More than ever, attorneys must be familiar with Customs and Border Protection guidance addressing attorney border searches, especially of electronic devices, the authors caution.
By Andrew S. Boutros and John R. Schleppenbach
In late 2017 and early 2018, we wrote in this publication about the recent increase in the number of border searches of electronic devices by United States Customs and Border Protection (CBP) and the ethical concerns the practice raises for attorneys, who are obligated to safeguard their clients’ confidences. In a newly-minted decision since then, the U.S. Court of Appeals for the Eleventh Circuit has approved forensic border searches of electronic devices without any showing of reasonable suspicion. In doing so, the court split from the two other circuit courts to have addressed the issue (the Ninth and Fourth Circuits). And, as a practical matter, protecting privileged materials during border crossings could now become even more of a concern for lawyers, particularly attorneys traveling from Florida, Alabama, and Georgia, the states within the jurisdiction of the Eleventh Circuit. More than ever, lawyers crossing the border into and out of the country must be familiar with CBP’s recent guidance (that we have described in our March 2018 article, 13 WCR 221) that sets out the procedure and self-imposed limitations border agents should follow when searching attorney electronic devices.
As a quick reminder, Rule 1.6(c) of the widely-adopted ABA Model Rules of Professional Conduct provides that “[a] lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” Comment 18 to this Rule lists factors to be considered in determining reasonableness, including:
Further, Rule 1.6(b)(6) permits an attorney to reveal information relating to the representation of a client to the extent that he reasonably believes it is necessary “to comply with other law or a court order.” Comment 15 to this Rule, however, makes clear that revealing such information cannot be considered necessary until the lawyer has “assert[ed] … all non-frivolous claims” against its disclosure and contemplated available avenues for appeal.
In the widely-discussed Formal Ethics Opinion 2017-5, the Association of the Bar of the City of New York Committee on Professional Ethics construed the local versions of these rules and concluded that attorneys have an obligation— before they even cross any borders—to assess the risk that client information will be breached, the potential harms that could result, and any safeguards that reasonably could be implemented. Because any disclosure of client information is presumptively harmful under the ethical rules, the Opinion suggested that attorneys consider not taking confidential client information across the border at all, such as by carrying blank “burner” phones or laptops or using software designed to securely delete information. Where confidential information is carried and disclosure is requested, however, the Opinion concluded that attorneys must take reasonable steps to avoid it, such as by requesting that materials not be searched or copied or asking to speak to a supervisor. Importantly, the Opinion determined that reasonableness does not require attorneys to refuse searches of their devices to the point that they are denied border entry or taken into custody. Finally, the Opinion stated that attorneys have an obligation to promptly notify clients impacted by any disclosures that are made at the border so that they can determine whether they should file a legal challenge.
In United States v. Touset, No. 17-11561 (11th Cir. May 23, 2018), the Eleventh Circuit reviewed a district court’s denial of a motion to suppress child pornography found by CBP personnel during forensic searches of two laptops and two external hard drives carried by a passenger arriving into Atlanta on an international flight. The searches were conducted because months of investigation had revealed that the defendant had repeatedly sent money to the Philippines—a country with ties to sex tourism and child pornography—and, in particular, the account of an individual whose email address had been found to contain child pornography. Accordingly, the district court determined that the searches were supported by reasonable suspicion. On appeal, the Eleventh Circuit agreed, but two of the three judges went even further, concluding that forensic searches of electronic devices conducted at U.S. borders need not be supported by reasonable suspicion at all.
The decision of the 2-1 majority of the court grounded itself in the history of the Fourth Amendment, noting that “[t]he First Congress—the same one that proposed the Fourth Amendment—empowered customs officials to stop and search without a warrant any vessel or cargo suspected of illegally entering our nation.” Given “the paramount interest of the sovereign in protecting its territorial integrity[,]” including by preventing smuggling, the court concluded that border searches differed from other searches and did not require reasonable suspicion. The court acknowledged that the U.S. Supreme Court and other courts had previously required reasonable suspicion for the prolonged detention or intrusive search of a person at the border, but concluded that such searches differed from searches of property, specifically, electronic devices, because the former involved physical (and even perhaps personal or intimate) contact that represented an indignity to the person searched. Whereas even if electronic searches intruded into the intimate details of one’s electronic life, the court determined that international travelers have diminished privacy interests that do not outweigh the government’s strong interest in securing its borders.
Although the Eleventh Circuit’s decision emphasized the government’s special interest in dealing with the unique problem of child pornography, it did not limit its ruling to searches involving such contraband. Rather, it gave CBP and other law enforcement agents carte blanche authorization to perform border searches of electronic devices without reasonable suspicion of any kind. Thus, although searches of electronic devices potentially containing attorney-client privileged materials were not specifically addressed, they were clearly swept up in the broad scope of the court’s ruling.
The Eleventh Circuit acknowledged that its decision put it at odds with the prior decisions of two other circuits: the Fourth and Ninth Circuits. In 2013, the Ninth Circuit determined in United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013) (en banc), that customs agents needed reasonable suspicion to support any forensic searches of electronic devices at the border. Although the court recognized that border searches have traditionally been given more leeway than other kinds of searches, it concluded that this merely means the balancing test of individual privacy rights versus government interests leans toward the government more, not that “anything goes.” Performing that balancing test, the court found that privacy interests were heavily implicated because forensic examinations were “comprehensive and intrusive,” like “reading a diary line by line looking for mention of criminal activity—plus looking at everything the writer may have erased.” Noting that, unlike with physical objects, it would be very difficult for travelers to take some digital files with them but not others, the court reasoned that “[a] person’s digital life ought not be hijacked simply by crossing a border.” Thus, although it recognized the important security concerns at borders, the Ninth Circuit, sitting en banc, concluded that reasonable suspicion should be required for forensic searches, which it viewed as a major intrusion into a traveler’s privacy.
The Fourth Circuit agreed with the Ninth Circuit in United States v. Kolsuz, No. 16-4687 (4th Cir. May 9, 2018), which was decided only weeks before the Eleventh Circuit’s decision in Touset. In Kolsuz, the court relied on the characterization of forensic searches of electronic devices as “nonroutine” border searches that fall outside of the normal border exception to the Fourth Amendment’s requirements. The court reasoned that forensic searches were “highly intrusive” and ran the risk of infringing significant “dignity and privacy interests.” It noted that the forensic search in that case had resulted in 896 pages worth of sensitive data, including personal contacts, photographs, internet browsing history, and GPS location history. Moreover, the court observed that smartphones and digital devices were now so ubiquitous that travelers could not simply opt to leave them behind to protect their privacy. Regardless, the court concluded that no exception to the reasonable suspicion requirement applied.
In light of the circuit split, the Supreme Court may step in and resolve the issue of whether reasonable suspicion is required for forensic searches of electronic devices during border crossings. But for now, those who travel internationally from within the Eleventh Circuit—which includes Florida, Alabama, and Georgia—are subject to suspicionless searches, including of their electronic devices. And those traveling internationally from anywhere outside the Ninth and Fourth Circuits do not have a conclusive answer to whether reasonable suspicion is required or not. This undoubtedly leaves a large percentage of traveling attorneys open to border searches of their electronic devices as they enter or exit the country.
Notwithstanding the current state of flux in the law, attorneys are not without practical guidance as to how they can go about to safeguard their clients’ confidential information during border crossings. Indeed, this is a subject we have covered extensively in our previous articles and will only briefly revisit here. Under recent guidance from CBP, attorneys enjoy special consideration during border searches and can insist to see a supervisor for the imposition of special protocols for segregating potentially privileged materials from border searches. Attorneys can also prevent access to any remotely-stored information from their electronic devices, which per CBP policy should not be accessed during border searches. Of course, lawyers must be prepared to prove their identities—such as by carrying bar-issued identification cards—and to potentially provide details of client names and the related files (assuming the very identity of the client is not itself privileged), if they wish to take advantage of these benefits.
More fundamentally, attorneys can avoid concerns about disclosing client confidences by uploading needed content to web-based services and carrying “burner” devices that store little or no client information locally. When confidential electronic materials must be carried across borders, they should be clearly identified as privileged (such as with legends asserting the privilege) and if possible, segregated from non-privileged materials. And, attorneys should also have a fully-charged cell phone handy when going through border security so that colleagues can be consulted as needed. Of course, the most primary step attorneys can take is to carefully consider whether international travel is truly necessary as part of the engagement and whether and what client materials really need to be brought across the border. After all, as Benjamin Franklin famously observed, “an ounce of prevention is worth a pound of cure.”
By taking these and other similar steps, attorneys can ensure that they have taken reasonable steps to safeguard their clients’ confidences and discharge their own ethical obligations.
The Eleventh Circuit’s decision in Touset serves as an important reminder to attorneys traveling internationally that they may be subject to forensic searches of their electronic devices, even if there is no reason to suspect them of any criminal activity. Indeed, such searches in the United States have increased dramatically in number over the past year. Given their ethical obligations to protect client confidences from exposure, attorneys must take proactive steps when crossing borders, such as by limiting the confidential information they carry and being prepared to identify and segregate privileged materials. More importantly, attorneys traveling internationally must be careful to familiarize themselves with CBP’s guidance on attorney border searches so that they can invoke the appropriate procedures and safeguards when the privileged and confidential materials they must carry are subjected to a border search request—whether in the United States or perhaps even abroad.
Andrew S. Boutros is the National Co-Chair of Seyfarth Shaw LLP’s White Collar, Internal Investigations, and False Claims Team and Lecturer in Law at The University of Chicago Law School. A former assistant U.S. Attorney in Chicago, his investigations and prosecutions spanned the globe and are regarded as among the most extensive and complex multi-district, international corporate fraud and cybercrime cases in the nation’s history. In total, Boutros coordinated efforts with international law enforcement authorities in more than 20 countries and charged and prosecuted crimes involving some $500 million in losses, proceeds, and judgments, while also investigating additional criminal conduct in the several billions of dollars. Today, Boutros represents clients in their most sensitive and important white collar matters, internal and cross-border investigations, including under the Foreign Corrupt Practices Act, and complex litigations. He also provides strategic counseling and advice to clients in a variety of industries and across subject matters, including in the design and implementation of various compliance programs.
John R. Schleppenbach is Counsel in the Litigation Department of Seyfarth Shaw’s Chicago office and a member of the firm’s White Collar, Internal Investigations, and False Claims Team. Schleppenbach has experience representing major corporations in all manner of international internal investigations and litigated matters, including cases involving the Foreign Corrupt Practices Act and the Convention for the International Sale of Goods. A former appellate prosecutor, Schleppenbach has also published more than three dozen articles on emerging issues in litigation and currently serves as the coach to the international arbitration moot court team at Northwestern Pritzker School of Law.
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