Washington, DC (Oct. 24, 2017) -- Customs and Border Protection (CBP) has long asserted it has the right to search electronic devices at border crossings and ports of entry. A 2009 directive (CBP Directive No. 3340-049) advises CBP agents on the scope of their authority to seize electronic devices and search their contents without a warrant. As part of the National Association of Criminal Defense Lawyers' (NACDL) ongoing efforts to educate criminal defense lawyers on government tactics that intrude on their ability to defend their clients, this primer will educate attorneys about the implications of CBP's claimed powers and offer strategies that will help them comply with their ethical obligations and responsibilities to their clients when entering the U.S.
CBP does not guarantee protection for privileged communications between attorneys and their clients when it searches digital devices. Thus, attorneys crossing the border may find themselves in violation of Rule 1.6 of the Model Rules of Professional Conduct, which establishes that "[a] lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent." NACDL has strongly expressed its concern with CBP's current policy.
"Defense lawyers need to know what's at stake," said NACDL President Rick Jones. "Disclosure of confidential information and privileged work product has become an inherent risk of warrantless electronic searches at the border. CBP policy presents a specific threat to defense lawyers who travel with electronic devices that contain confidential materials within the purview of work product and attorney-client privilege."
According to NACDL's National Security Committee Co-Chair Joshua Dratel, "There's a disconnect that exists between a defense attorney's ethical obligation to their client and what CBP thinks it can do. CBP policy offers only a narrow exception of what documents are privileged. This policy fails to comply with the need for attorneys to protect the confidentiality of all protected client communications and case materials."
The scope of CBP's search and seizure policy goes far beyond "routine searches." For example, any digital device seized at the border can be subject to an investigation by another agency at a different physical location, all as part of the same initial search. While border patrol agents are prohibited from denying entry to a U.S. citizen who declines to unlock an electronic device, a citizen who fails to comply may be subject to a lengthy detention. Non-citizens who decline may be denied entry into the country, and lawful permanent residents may see their immigration status endangered.
The broad authority CBP has asserted has not been tested yet in the courts in the context of recent Supreme Court and other decisions regarding electronic devices and stored digital information. NACDL is committed to defending the Fourth Amendment rights of both non-citizens and citizens, including attorneys and their clients. To read the full text of the memo which includes strategies to protect work product and privileged communications, click here.
To read more about NACDL's extensive work on the Fourth Amendment and national security, please visit https://www.nacdl.org/fourthamendment and https://www.nacdl.org/nationalsecurity.
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The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.