Sunday, June 22, 2008

Laptop Searches -- Two Disturbing Case Studies, Part I

To appreciate the power and potential of warrantless laptop searches at U.S. borders as investigative tools, consider the following two cases, both of which are true cases, one is currently in the daily news and the other was related to me by the attorney in question:


Attorney Z is a partner in a prominent Toronto commercial law firm. His practice includes giving advice and support to business clients around the world wishing to immigrate to Canada. He travels frequently to foreign destinations, including the U.S., to meet with his clients. He visits the U.S. frequently because it is convenient and many of his clients also travel there on business or are residing there on short term visas.

When traveling to the U.S. attorney Z is “pre-cleared” in Canada by the U.S. Customs and Border Protection service (CBP). This means he must present his credentials to the CBP agents, answer their questions and supply the information they request or he will not be allowed to board his plane for the U.S. On a recent trip to the U.S. he was questioned during pre-clearance along the following lines:

Q. What is your occupation?

A. I am a lawyer.

Q. What is your field?

A. Immigration

Q. Why are you traveling to the U.S. today?

A. To meet with clients.

Q. Where are they located?

A. New York city.

Q. What are their names and addresses?

A. [Answer unknown]

Q. Are your clients in the U.S. legally, and if so on what kind of visas?

A. [Answer unknown]

Q. What is the nature of your business with these clients on this trip?

A. [Answer unknown]

Q. How much are you being paid for representing these clients?

A. [Answer unknown]

Just consider now the position in which this puts Attorney Z. He is being asked to divulge confidential attorney-client information. That information, in the hands of the U.S. government, could be detrimental to his clients -- suppose, for example, they are in the U.S. illegally, having overstayed their visas. Attorney Z has a professional duty not to reveal privileged attorney-client information whether detrimental or not. He also has a duty not to aid and abet violations of U.S. law. So what can Attorney Z do? If he answers truthfully he is violating his duty to his clients and possibly exposing himself to criminal charges under U.S. law. If he lies to the CBP agent he commits a federal crime. If he refuses to answer, invoking the attorney-client privilege or otherwise, he may be denied entry to the U.S. and his business trip will fail.

[For the purpose of this post I will skip over the question of whose attorney-client privilege law applies to Attorney Z, the U.S.'s or Canada's, but the question lurks.]

I hope it will come as a shock to the reader, as it did to me, to learn that CBP is asking such intrusive and improper questions of a lawyer traveling to the U.S. on business. Clearly the CBP is doing more here than simply checking the credentials of an inbound traveler. It should not be relevant, e.g., to any legitimate border inquiry to determine how much a Canadian lawyer is being paid by his clients. With this kind of examination the CBP is using the pre-clearance procedure as a general investigative tool.

Now consider the unrestricted laptop search as an additional tool in the hands of the CBP in connection with the examination of a traveler such as Attorney Z. If Attorney Z gives the CBP agent sufficient information on his clients or his business to create suspicion or excite interest in further inquiry, or if Attorney Z declines to answer the agent's questions, then the next step for the CBP agent is to search his laptop. The decisions of the Fourth and Ninth Circuits in Ickes and Arnold give the CBP agent an unrestricted right to require Attorney Z to boot his laptop and then to stand aside while the agent, and perhaps an ICE (U.S. Immigrations and Customs Enforcement) team, conduct a search of the files on his hard disk. If Attorney Z is like most traveling attorneys he will in fact be carrying a laptop and it will not be encrypted, either in whole or in part, or, even if it is, Attorney Z may feel it the better part of discretion to enter the passwords or encryptions keys or to divulge them to the agent. (See the discussion of the encryption dilemma on Jennifer Granick's blog on the EFF website.) The CBP will therefore readily discover the names of his clients, his correspondence with his clients, the documents involved in the matter he is handling for the clients and the his fee agreement with his clients. [In the actual case Attorney Z was carrying a laptop but it was not searched -- he dodged the Black Swan on that trip.]

For another account of the actual experience of a Canadian traveler whose laptop was searched at the U.S. border, apparently at random, see the article "Illegal Downloads -- New Concern for Cross-Border Travelers."

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