U.S. Customs searches have become increasingly invasive over the years. Pursuant to Department of Homeland Security (DHS) policy, U.S. Customs and Border Protection (CBP) operates under the “broad search exception”, which allows searches and seizures at international borders or an equivalent (e.g. international airports) without probable cause or a warrant. CBP’s searches are deemed “reasonable” per se, and thus not a Fourth Amendment violation, which protects against “unreasonable searches and seizures”.  The broad power of the CBP, of course, stems from concern for national security.

For lawyers, invasive CBP searches are particularly problematic, as the CBP asserts that it has the authority to read any document in possession of a traveler, including those found on electronic devices, despite claims that such documents are attorney-client privileged information.  A Ninth Circuit decision supports the CBP’s position, holding that “reasonable suspicion is not needed for customs officials to search a laptop or other electric device at the international border” (United States v. Arnold, 523 F. 3d 941(9th Cir. 2008). Since, other courts have ruled similarly.

ABA Efforts to Clarify Department of Homeland Security Policy

In May of 2017, then-American Bar Association (ABA) President Linda Klein wrote a letter to the DHS voicing the ABA’s concerns over potential violations of attorney-client privilege at international borders and airports. In particular, Klein requested that DHS clarify the directive on electronic device search and seizure, which had not been updated since 2009.

We recognize that security at the nation’s borders is of fundamental importance, and we acknowledge that lawyers traveling across the border with laptops and other electronic devices containing confidential client documents and other information could become subject to routine searches by CBP and [Immigration and Customs Enforcement] agents, Klein wrote. But just as border security is fundamental to national security, so too is the principle of client confidentiality fundamental to the American legal system.

Since May, DHS has worked together with the ABA to clarify the original directive, and develop new protections for attorney-client privileged information, and confidential client information on lawyer’s electronic devices. Early this month, the CBP issued a revised directive. The revised directive is a “clear improvement over the prior policy”, said now ABA President Hilarie Bass, although it does not include the entire ABA proposal.

Key changes to the revised electronic device search and seizure directive include: a requirement for CBP officers to consult with CBP’s senior counsel before searching devices when an attorney-client privilege is asserted; details for how CBP officers should respond to such assertions; segregation of privileged material; and disposal of privileged materials.

In addition, the ABA Standing Committee on Ethics and Professional Responsibility issued advice to travelling lawyers, in an electronic device advisory. The ABA recommends the following:

  • Determining which device contains attorney-client privileged documents, and consider leaving at home.
  • Consider a temporary, inexpensive device or storage device with minimum necessary information.
  • Familiarizing yourself with the type and location of privileged and confidential information.
  • Placing device on airplane mode, or powering off entirely.
  • Identification available to demonstrate that you are a legal professional.
  • Familiarizing yourself with the requirements in your jurisdiction’s professional code of conduct.

Any lawyer that travels outside the U.S. should be aware of the DHS policy on electronic device search and seizure at international boarders, and take precautions accordingly.

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. He founded and currently leads the firm’s Privacy, e-Communication and Data Security Practice, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with…

Joseph J. Lazzarotti is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. He founded and currently leads the firm’s Privacy, e-Communication and Data Security Practice, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Mr. Lazzarotti also is a member of the firm’s Employee Benefits Practice Group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Mr. Lazzarotti counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Mr. Lazzarotti’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Mr. Lazzarotti speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Mr. Lazzarotti served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.