From the Desk of Rosanna Berardi: Electronic Devices at the Border — Can CBP Search Your Phone that Contains ‘Privileged’ Information?
In January of 2018, CBP issued a new directive regarding the search of electronic devices. Each day, CBP processes over one million passengers. In 2017, CBP processed over 400 million passengers, of which 30,200 electronic devices were searched. While this number is small, it is important to know your rights when crossing the border with a smartphone that contains privileged, proprietary or sensitive information.
It has been long established that CBP is able to search a passenger’s luggage, wallet, purse or electronic devices. While the Fourth Amendment of the U.S. Constitution ensures protections against unreasonable searches and seizures, such protections are greatly relaxed at the U.S./Canada/Mexican borders. The government’s interest in protecting the U.S. and keeping out criminals and contraband have prevailed over constitutional rights for several decades.
The new CBP directive attempts to clarify what the government can and cannot do at the border with respect to electronic devices. Since it is common for individuals to travel with personal and work-related smartphones, laptops and tablets, the government needed to update their search policy, especially since the last directive was issued back in 2009 under the Obama Administration.
Can CBP search your “privileged” work emails? If you are an attorney, then you know that the Model Rules of Professional Conduct require you to protect any attorney/client communication, as well as work products. What happens when your work-issued smartphone contains client and personal emails? Under the new CBP directive, you are required to provide CBP with your password to any electronic device or document. However, you are not required to provide them access to any information stored on a “cloud” device.
If you are an attorney and assert the attorney/client privilege, CBP must ask for, preferably in writing, specific files, names, email addresses and phone numbers that may assist them in identifying privileged information. They will then segregate any privileged information. Once the privilege is asserted, CBP will contact the CBP Associate/Assistant Chief Counsel’s office who will segregate the information.
For general business travelers, CBP still has the right to search any proprietary or confidential business communications. A business traveler cannot assert any “business privilege” and as such, is required to provide CBP with passwords and access to company emails or documents on a laptop. Failure to comply with CBP’s request can result in the confiscation of the smartphone or laptop in question.
So how can a frequent business traveler protect his/her confidential information? First, it’s critical to know the contents of your electronic devices. You should be aware of the number, location and types of emails and documents you are carrying on your devices. Second, you should obtain a new phone for business travel. We recommend storing as much information on a “cloud” service and turning your phone on “airplane mode” and disabling WiFi before crossing the border. If you are an attorney, be prepared to produce your bar admission identification or business card so you can assert the attorney/client privilege.
While the search of electronic devices is very low given the millions of passengers that enter the U.S. each day, it is still critical to know your rights at the border. Don’t take a chance; rather, protect confidential data prior to crossing the border. Be polite, courteous and professional. CBP is always looking out for the safety of our nation and it’s best to make your inspection process as efficient as possible.
If you have further questions on electronic device searches at the border or are interested in creating a company policy on this matter, please contact our office to speak with one of our attorneys today!