In mid-2017, I discussed some of the risks associated with attorneys bringing an iPhone or iPad when traveling internationally because U.S. customs agents have been demanding to search mobile devices upon reentry into the country. Yesterday, Sophia Cope and Aaron Mackey, staff attorneys with the Electronic Frontier Foundation (EFF), reported that Customs and Border Protection (CBP) has released a new directive: CBP Directive No. 3340-049A (Jan. 4, 2018) titled Border Search of Electronic Devices. The full EFF report provides details on how this affects all U.S. citizens, but today I want to focus on one small part of the new directive, the part that deals with privileged information on an attorney's iPhone or iPad.
Under the new directive (which you can download here in PDF format), there are now new procedures that a border patrol agent must use when confronted with data protected by the attorney-client privilege or work product. The good news is that once an attorney asserts the privilege, the CBP Associate/Assistant Chief Counsel office needs to get involved; the border patrol agent cannot decide on his own to ignore the assertion of privilege. Having said that, it looks like the attorney needs to all but provide a full privilege log to CBP, and even then it is unclear how CBP will deal with the privileged information. The policy says that it will be "handled appropriately while also ensuring that CBP accomplishes its critical border security mission." Section 5.2.1.2. Here is the new policy:
5.2 Review and Handling of Privileged or Other Sensitive Material
5.2.1 Officers encountering information they identify as, or that is asserted to be, protected by the attorney-client privilege or attorney work product doctrine shall adhere to the following procedures.
5.2.1.1 The Officer shall seek clarification, if practicable in writing, from the individual asserting this privilege as to specific files, file types, folders, categories of files, attorney or client names, email addresses, phone numbers, or other particulars that may assist CBP in identifying privileged information.
5.2.1.2 Prior to any border search of files or other materials over which a privilege has been asserted, the Officer will contact the CBP Associate/Assistant Chief Counsel office. In coordination with the CBP Associate/Assistant Chief Counsel office, which will coordinate with the U.S. Attorney's Office as needed, Officers will ensure the segregation of any privileged material from other information examined during a border search to ensure that any privileged material is handled appropriately while also ensuring that CBP accomplishes its critical border security mission. This segregation process will occur through the establishment of a Filter Team composed of legal and operational representatives, or through another appropriate measure with written concurrence of the CBP Associate/Assistant Chief Counsel office.
5.2.1.3 At the completion of the CBP review, unless any materials are identified that indicate an imminent threat to homeland security, copies of materials maintained by CBP and determined to be privileged will be destroyed, except for any copy maintained in coordination with the CBP Associate/Assistant Chief Counsel office solely for purposes of complying with a litigation hold or other requirement of law.
5.2.2 Other possibly sensitive information, such as medical records and work-related information carried by journalists, shall be handled in accordance with any applicable federal law and CBP policy. Questions regarding the review of these materials shall be directed to the CBP Associate/Assistant Chief Counsel office, and this consultation shall be noted in appropriate CBP systems.
5.2.3 Officers encountering business or commercial information in electronic devices shall treat such information as business confidential information and shall protect that information from unauthorized disclosure. Depending on the nature of the information presented, the Trade Secrets Act, the Privacy Act, and other laws, as well as CBP policies, may govern or restrict the handling of the information. Any questions regarding the handling of business or commercial information may be directed to the CBP Associate/Assistant Chief Counsel office or the CBP Privacy Officer, as appropriate.
5.2.4 Information that is determined to be protected by law as privileged or sensitive will only be shared with agencies or entities that have mechanisms in place to protect appropriately such information, and such information will only be shared in accordance with this Directive.
I'm glad to see that CBP is acknowledging that there is a need to provide heightened protection for confidential information on an attorney's mobile device. However, any attorney dealing with this new provision will need to do a lot of work, and if you have a short window before your connecting flight, I suspect that you are going to miss that connection.
