Friday, September 18, 2009

Laptop Seaches -- Obama's Department of Homeland Security Disappoints, Part III

Attorney-Client Privilege, Physician-Patient Privilege and the Journalist Shield Under the New Directives

Searches of laptops carried by lawyers and containing privileged information are of serious concern to lawyers and their clients, all the more so because CBP does in fact have a practice of asking intrusive questions of lawyers entering the U.S.. In a comment posted below I related a set of actual questions posed by CBP to a Canadian lawyer attempting to cross the border into the U.S. on business for his clients. The questions put by the CBP called for the lawyer to divulge privileged client information. The treatment of the attorney-client privilege in the new directives is therefore of utmost importance.

The CBP and ICE directives both provide:
Special Agents/Officers may encounter information [in the course of a border laptop search] that appears to be legal in nature, or an individual may assert that certain information is protected by the attorney-client or attorney work product privilege. (CBP 5.2.1; ICE 8.6 2) b))
The CBP directive then asserts:
Legal materials are not necessarily exempt from a border search, but they may be subject to the following special handling procedures. (CBP 5.2.1)
The ICE directive does not include this sentence. Both directives, however, then go on to provide substantially to the same effect:
If an Officer/Special Agent suspects that the content of such [document or material] may constitute evidence of a crime or otherwise pertain to a determination within the jurisdiction of ICE/CBP [then the Chief Counsel's office must be consulted]. (CBP 5.2.1; ICE 8.6.2)b))
The highlighted clause does the damage. It gives the broadest possible discretion to the officer to challenge the traveling lawyer's claim of privilege and take the matter to the next step, namely, a consultation with legal counsel for the agency. This of course entails delay and puts pressure on the lawyer to give up his claim of privilege, which may in turn violate his duty to his client, in order to continue on his way. Further, as with the rule governing the right to search the laptop itself, there is no requirement that the agent's suspicion be reasonable. So far the lawyer is in a very difficult position.

Then comes the next step: the consultation with legal counsel for CBP or ICE. How that plays out we are not told. Are lawyers from the respective legal counsel's office available 24 hours a day in diverse locations? Does such a required consultation not inevitably entail delay and unbearable inconvenience to the traveling lawyer? Once a lawyer in the agency's legal office is found what should he do? The CBP or ICE agent informs him that he has been met with a claim of privilege in the course of an attempt to search a laptop and review documents, contact information, calendar entries, etc. How can the agency lawyer react? If the CBP or ICE agent has not to this point actually seen the document or data in question he cannot state facts to the agency lawyer sufficient to support a conclusion that the claim of privilege is either well or ill founded. A conscientious agency lawyer will either have to advise that the claim of privilege must be respected or initiate some sort investigation designed to elicit more facts. A less-than-conscientious agency lawyer may be tempted to advise the agent that so long as the agent suspects something (reasonable or not) then the claim of privilege does not prevent the agent from continuing the laptop search and examining the documents or data in question. We are left here in unexplored territory of great potential danger to laptop carrying lawyers entering or leaving the U.S.

If the attorney-client privilege caused some grief to the drafters of the two directives, the physician-patient privilege and the journalist's shield troubled them not at all. The ICE directive brushes both aside by advising its officers that such claims "shall be handled in accordance with all applicable federal law and ICE policy." Whatever these may be is left to the agent to puzzle out. The ICE directive does point out, however, that although there is no federal physician-patient privilege "the inherent nature of medical information warrants special care for such records." This is a very weak form of protection to a traveling doctor and his patients. The CBP directive does not even go this far. It omits entirely the "special care" language. Both directives close their treatment of the physician-privilege and the journalist's shield by providing that "questions regarding the review of these materials" shall be referred to agency lawyers. As with the lawyer-client privilege there is no indication of what happens next.

Viewed in their best lights these provisions of the two directives can be seen as attempts to acknowledge that claims of privileges, at least lawyer-client privileges, may be asserted and may have to be respected or at least filtered through the legal offices of the respective agencies. Where the referral process leads, however, is left entirely open and is therefore likely to lead to more confusion than clarity, which will almost certainly redound to the disadvantage of the traveler.

Thursday, September 17, 2009

Laptop Seaches -- Obama's Department of Homeland Security Disappoints, Part II

The Two New Directives from Homeland Security -- Continued

One hesitates to criticize President Obama, for whom so many labored and spent mightily, on the day on which he announced the deeply significant scrapping of the Bush Administration Eastern European missile shield program. Yet, while he has moved forward on defense, Secretary Janet Napolitano has moved backward on civil liberties. It is not clear whether the two unfortunate directives announced by Napolitano on August 27 were specifically considered and approved by the President. One hopes not. A search of the White House website discloses no reference to the DHS directives.

Encryption and The Fifth Amendment Privilege Against Self-Incrimination

In the one reported laptop search case dealing with the Fifth Amendment, In re Boucher, on an odd set of facts, the court upheld Boucher's refusal to give up the password to his PGP- encrypted hard disk containing pornographic photos. At the border Boucher had actually opened the drive, but without revealing his password. The agent saw the rather disgusting pornographic images, but made the mistake of shutting down the laptop before seizing it. Boucher was arrested. The government agents could not later open the drive to develop the evidence so the grand jury subpoenaed Boucher in an attempt to compel him to divulge the password. Boucher refused, citing his Fifth Amendment privilege against self-incrimination, and the court sustained his objection. The government was checkmated.

It is sensible for travelers carrying privileged, confidential or personal information on their laptops to encypt their drives. (In the case of attorneys it may be not only sensible but mandatory.) At the threshold this blocks a border search if the traveler refuses to give up his password. Interestingly, the two Directives do not explicitly deal with this situation. One would have thought, after the decision in Boucher, that guidance would have been given to CBP and ICE agents on what to do when confronted by an encrypted drive and a refusal by a traveler to reveal the password to the drive. Not so.

Instead, the Directives set out a series of steps which CBP or ICE agents should take to seek the help of other federal agencies in decrypting the encrypted drive. There is no suggestion in the Directives that the agents could or should demand that the traveler himself or herself disclose the password. The Directives thus appear to accept the proposition that the Fifth Amendment privilege against self-incrimination may be invoked by a traveler as a bar to disclosure of a password to an encrypted drive, and the border agents must accept that and turn elsewhere for assistance in decryption. This is a significant, though unstated, concession in the Directives. Whoever drafted these things was not eager to draw attention to the civil liberties of targeted travelers even when compelled to respect them. [This, of course, is not the begrudging attitude toward the Constitution that one might have expected from the new administration. I think many assumed that the anti-civil-libertarian policies of the Bush administration would terminate when Obama took office. That unfortunately is proving not to be entirely true. At least not in Secretary Napolitano's shop.]

Comforting though it is to know that one may invoke the Fifth Amendment and decline to give a CBP or ICE agent the password to his/her encrypted drive or file, the traveler must reckon with the possibility that the laptop will thereupon be seized or at least detained (remember that ICE agents can do this at will) while the agents seek technical decryption help from elsewhere in the federal government. Whether they do this in fact we do not know. The traveler must take it on board in any event. He or she might face a delay at the border while the government tries to decrypt the drive or the device in question, or, more likely, the traveler will face a stand off in which the CBP or ICE agent will either give in and let the traveler proceed with his/her laptop or play hardball and seize the laptop, leaving the traveler to proceed without it. From the point of view of the rule of law, this is unexplored territory. The Obama administration and Secretary Napolitano in particular should not have put travelers in this position.

[To be continued.]

Monday, September 14, 2009

Laptop Seaches -- Obama's Department of Homeland Security Disappoints

The Two New DHS Directives

At the close of the Bush Administration the state of the law of laptop searches at the border was in an unfortunate state. In the leading case of U.S. v. Arnold the Ninth Circuit Court of Appeals had held, in effect, that laptops may be searched at the border even though the searching agent has no reasonable suspicion that the traveler is carrying illegal data on the laptop. Now, in the early months of the Obama administration, the matter has grown worse.

The objection to the Arnold decision (which has since gained in stature by virtue of the Supreme Court's refusal to review it) is that agents of the Customs and Border Protection (CBP) service and its companion Immigrations and Customs and Enforcement (ICE) branch, both agencies of the Department of Homeland Security (DHS), are subject to no rule whatsoever governing their right to search laptops of travelers entering or leaving the U.S. They have complete discretion. They may do as they please.

The Two New Directives

a. The Right to Search Laptops

On August 27 of this year Janet Napolitano, as Secretary of DHS, announced two new directives, one from CBP and one from ICE, governing laptop searches at the border. On the core question of the right of CBP and ICE to search laptops both Directives carry forward, in effect, the rule of the Arnold case, i.e., there is no limit.

The ICE Directive puts it as follows:
ICE Special Agents acting under border search authority may search, detain, seize, retain, and share electronic devices, or information contained therein, with or without individualized suspicion, consistent with the guidelines and applicable laws set forth herein. (Section 6.1, ICE Directive.)
The operative language is, of course, the infelicitous phrase "with or without individualized suspicion." This clumsy expression was not invented by DHS for this purpose but dates back at least to a 2001 opinion of Chief Justice Rehnquist in U.S. v. Knights. The phrase has been used here by ICE to mean that its agents at the border are not restrained by a rule of reasonable suspicion or any other rule whatsoever.

The CBP Directive employs the same phrase in its grant of laptop search authority to its agents:

In the course of a border search, with or without individualized suspicion,, an Officer may examine electronic devices and may review and analyze the information encountered at the border, subject to the requirements and limitations provided herein and applicable law (sic). (Section 5.1.3, CBP Directive)

Thus, on the key civil liberties question, when confronted with the need to choose between a rule of reasonable suspicion or follow Arnold and dispense with such a rule, both ICE and CBP elected to follow Arnold and adopt what is in reality a no-rule rule. The Secretary of DHS obviously approved and issued the Directives. We do not know what role the White House played in the issuance of these directives, even less do we know whether the President explicitly approved. In any event, from a civil liberties perspective, the state of the law has worsened under the new administration.

b. The Right to Seize Laptops

Although both CBP and ICE adopt the same rule governing the right to search laptops, they take different approaches to the right to seize laptops.

As quoted above, the ICE Directive specifically includes the right to seize laptops within the scope of its basic no-rule rule. ICE agents "may... retain, seize, detain and share [laptops] with or without individualized suspicion...." (ICE Directive, Section 6.1.)

The CBP Directive curiously departs from the ICE Directive. Its search rule is confined to examination, review and analysis. CBP Directive, Section 5.1.3. In a separate section the CBP agent is given the right to detain a laptop "for a brief, reasonable period of time to perform a thorough border search." CBP Directive, Section 5.3.1. Up to this point the agent is still operating under the no-rule rule. Then, in a rather casual and offhand manner, the CBP Directive suddenly subjects its agents to a rule of probable cause: "...if after reviewing the information [stored in the laptop]...there is not probable cause to seize it [the laptop must be returned]." CBP Directive, Section

Whether this language of probable cause is specifically meant to give the traveler greater protection or whether it somehow slipped through the editing process in the legal department at CBP we do not know. In any event it is an odd bit of drafting.

Any protection this probable cause rule might be thought to offer the traveler is more illusory than real, however. Who determines "probable cause?" The searching officer. What standards guide him? None are given. If the CBP agent is in doubt whether he has probable cause or not does anything prevent him from calling in an ICE agent, who has authority to seize the laptop without finding probable cause, and asking him to seize the laptop? No. If the CBP agent gets it wrong and seizes a laptop without having probable cause is there anything the traveler can do about it? No. In effect, the CBP agent can comply with this rule and seize a laptop by simply declaring that he has probable cause to do so. This is less a legal rule than a suggestion, a mere bow in the direction of legality.