Border Searches versus Clients’ Confidential Information: The Ninth Circuit’s Cotterman Analysis and Counsel Entering the United States with Mobile Devices
LACBA Update, September 2013
By Lisa Miller, member of LACBA's Professional Responsibility and Ethics Committee, a trial lawyer at the Marcin Lambirth law firm, and an adjunct professor at the University of Southern California and at California State University, Northridge. The views expressed are her own. She can be reached at (818) 802-1709 or Lisa@LMillerconsulting.com.
When entering the United States, every person undergoes a search of the traveler’s person and possessions by Customs and Border Protection. For most attorneys, personal possessions include laptops and mobile devices that contain confidential and privileged client material, which risk exposure during customs searches.
This became a focus of travelling lawyers when the Ninth Circuit Court of Appeals held recently that customs officials need only a reasonable suspicion and not probable cause to search lawyers’ mobile technology at the border.1 In United States v. Cotterman, a traveler crossed a border with his laptop, which contained encrypted files. The traveler was a known pedophile, and customs enforcement took possession of his laptop. Once customs officials broke into his encrypted files, they found child pornography.
These governmental rights raise questions for counsel. Given that these mobile devices and other technologies often contain privileged client information and are capable of accessing the law office network, how does counsel balance the competing interests of California Rule of Professional Conduct 3-100 and the threat by customs to attorney-client privilege?
Rule 3-100 of the California Rules of Professional Conduct, “Confidential Information of a Client,” states: "(A) A member shall not reveal information protected from disclosure by Business and Professions Code section 6068, subdivision (e)(1) without the informed consent of the client[.]"
The Discussion on the rule, quoting from Business and Professions Code Section 6068(e)(1), states that it is a duty of a member of the bar: “To maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” A member’s duty to preserve the confidentiality of client information involves public policies of paramount importance.2
Preserving the confidentiality of client information contributes to the trust that is the hallmark of the client-lawyer relationship. Clients are encouraged to seek legal assistance and to communicate fully and frankly with the lawyer so that the lawyer may represent the client effectively. In the absence of the client’s consent regarding this personal information, a member must not reveal information relating to the representation.3
Confidentiality is the basis on which the attorney-client trust and relationship are built; with the existence of invasive comprehensive searches that violate attorney privacy expectations, the sanctity of this relationship is threatened. Therefore, it is the responsibility of the attorney to be aware of these risks and to take the necessary precautions when facing potential confidentiality breaches occasioned by the attorney’s loss of privacy rights, as at the border.
When transmitting communications that reflect on representation of a client, counsel must put in place reasonable safeguards to prevent the information from coming into the hands of unintended recipients. Pursuant to Cotterman, counsel are now on notice that client information is at risk of being viewed by border officials. Therefore, counsel should password-protect relevant files and label them descriptively to plainly illustrate to anyone who may be conducting such a search that the files contain legal documents and are confidential. Counsel should keep in mind that at the border the traditional notions of Fourth Amendment protections fall away.
If a customs agent does exhibit interest in confidential client files and acts to seize them from counsel, counsel should demand a Special Master. In United States v. 4820 Heaven Avenue,4 the court held that when materials were seized from two attorneys pursuant to a search warrant during a criminal investigation, the superior court had an obligation to determine claims of attorney-client privilege.5
The rule in 4820 Heaven Ave. and its progeny can be useful when applied in a Cotterman search situation. Once counsel asserts privilege to a customs agent in the face of a comprehensive search, based on the privileged contents or the access capabilities of the mobile technology, arguably, counsel becomes entitled to have these claims of attorney-client privilege considered via in camera judicial review prior to any intrusive law enforcement search. In these instances, the mobile technology should be placed in a sealed container at the border.
But what about situations where counsel fails to assert a right to a hearing before a Special Master, and customs officials view confidential or privileged material? Assuming that an inadvertent disclosure during a border search has occurred, this implicates waiver of the entire attorney-client privilege. Several approaches exist to determine whether the attorney-client privilege has been waived. But a court could find that disclosure through a border search is equivalent to court-compelled disclosure, so the disclosure might not be a true waiver of privilege. The analysis is too new at this time for the courts to have formed a consensus regarding this approach, so counsel could face some exposure in this situation.
At times, counsel may claim that the attorney-client privilege prevents a border search due to the private nature of legal materials and may state that the technology requires special handling, such as appointment of a Special Master. However, if a customs agent suspects that these materials contain evidence of a crime or pertain to a determination within its jurisdiction, the officer must seek advice from the office of the Chief Counsel or the appropriate U.S. Attorney’s office before conducting a search of the document.6 In addition to demanding a Special Master for in camera review, an attorney facing such a situation should insist on this federal procedure as well.
Best Practices for Travelling with Technology
- Consider including a paragraph in your retainer agreement regarding border crossing with technology containing or syncing with privileged communications.
- Encrypt confidential files to protect against cursory searches.
- Label files carefully so that customs personnel can readily understand the confidential and client-centric nature of the encrypted files.
- Carry a copy of the U.S. Customs and Border Protection CBP Directive No. 3340-049, which states at Section 5.2.1 that customs officers must seek advice from the Chief Counsel’s office before searching what appears to be legal material.
- Although not all legal material is privileged or protected, counsel should clearly, ideally in front of witnesses, invoke the privilege and give a short explanation of why the material is protected.
- Consider cutting off access from your mobile technology to the office computer system when the mobile device is crossing a border. You can activate the connection after you are through customs. This, at least, limits access by customs to confidential material beyond the memory in your mobile device.
- Consider placing confidential material on encrypted removable devices, such as thumb drives, and disconnecting the removable devices from the main unit when entering customs.
1 United States v. Cotterman, 709 F. 3d 952 (9th Cir. 2013).
2 In Re Jordan, 12 Cal. 3d 575, 580 [116 Cal.Rptr. 371] (1974).
3 See, e.g., Commercial Standard Tile Co. v. Superior Court, 92 Cal. App. 3d 934, 945 [155 Cal.Rptr. 393] (1979).
4 United States v. 4820 Heaven Avenue, 2012 U.S. Dist. LEXIS 41897 (C.D. Cal. February 21, 2012).
5 See also Garber v. City of Clovis, 2012 U.S. Dist. LEXIS 10603 (E.D. Cal. January 30, 2012); Cal. Penal Code Sec. 1524; People v. Superior Court (Laff), 25 Cal. 4th 703; 107 Cal. Rptr. 2d 323 (2001).
6 U.S. Customs and Border Protection CBP Directive No. 3340-049, dated August 20, 2009 —Subject: Border Search of Electronic Devices Containing Information.
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