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.

1 comment:

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