BY LEE RAWLES
Hundreds of American lawyers will be traveling to Vancouver, British Columbia, for the ABA Midyear Meeting
next week. As they pass through U.S. and Canadian customs, they and their electronic devices can be searched.
But through the efforts of the ABA, the Department of Homeland Security has recently clarified its policies on how it intends to protect privileged information during its searches.
The ABA contacted Homeland Security in May with its concerns about the potential for violations of attorney-client privilege at the nation’s borders in a letter written by then-ABA President Linda Klein.
Klein said the ABA was concerned about the breadth of the authority given to U.S. Customs and Border Protection agents to search lawyers’ electronic devices “without any showing of reasonable suspicion.” She asked that DHS clarify the directive on electronic device search and seizure, originally written in 2009, to protect attorneys and their clients.
“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.”
According to ABA President Hilarie Bass, senior DHS officials met with the ABA after the letter was received, and CBP released a revised directive.