Yes, the US customs agents demand to search attorneys’ iPhones and iPads (and other mobile devices) upon the attorney’s reentry into the country (may not happen often, but it happens often enough). On January 4, 2018, Customs and Border Protection (CBP) released a new directive on searches of an attorney’s mobile devices. A portion of it deals with privileged information on an attorney’s mobile device.
Under this new directive, CBP has new procedures that an agent must use when there is data protected by the attorney-client privilege or work product exemption. Essentially, once an attorney asserts that there is privileged information on the mobile device, the CBP Associate/Assistant Chief Counsel office will get involved. The big change is that the border patrol agent cannot decide on his/her own to ignore the assertion of privilege. And it appears that the attorney may be forced to provide a full privilege log. Even after all of that, it remains unclear how CBP will deal with the privileged information.
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.
126.96.36.199 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.
188.8.131.52 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.
184.108.40.206 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.
In short, you may be able to protect privileges and exemptions on your mobile devices; however, the safer course might be to use a “burner” phone while traveling abroad. And an even safer course would be - wipe any privileged material from the mobile device before leaving and reentering the United States.
Travel is hard enough – let us not make it any harder . . ..
As always, feel free to contact me at firstname.lastname@example.org