Borderline Behavior

In a recent House Homeland Security Committee meeting, Homeland Security Secretary John Kelly testified that under his watch all foreign visitors to the United States will be asked, “What [Internet] sites do you visit? And give us your passwords.” 

“If they don’t want to give us that information, then they don’t come,” he said.

The practice already has apparently begun in earnest. And the inquiries have not necessarily been limited to foreign visitors. In January the U.S. Court of Appeals for the Second Circuit held that customs officers could, without a warrant or probable cause, examine and copy documents belonging to a traveler who was under investigation for a crime completely unrelated to customs or border issues.

The defendant in United States v. David Levy was returning home to the U.S. from a business trip to Panama. Levy was the subject of an ongoing investigation into alleged stock manipulation. He was detained at the airport passport entry point by Customs and Border Protection officers who had been asked for “assistance” by the federal agency investigating Levy. Customs and Border Protection inspected his luggage, including a notebook of handwritten jottings, which they photocopied. Less than three days later, Levy was indicted for a variety of crimes. The notebook was a key piece of evidence used to convict.

So what does this mean for you and your clients who travel outside the U.S.? A few things:

• Can you be stopped and questioned at the U.S. border? Yes, this is called “secondary inspection.” Expect to miss your connecting flight. If you disrespect the officers during the secondary inspection questioning, expect to miss the next flight after that too.
• If you are subjected to a secondary inspection, do you have the right to have your lawyer present? If you are a U.S. citizen, yes. If not, technically you have that right only if you are being questioned about matters other than your immigration status, but what is relevant to your immigration status is very broadly construed. If you try to exercise your rights, expect the CBP officers to push back and assert you are making yourself look guilty.
• Can your electronics be taken from you at the border? Unfortunately, yes. And if your devices are taken, do not expect to get them back for months. 
• What should you do if your electronics are taken? You must be provided with a receipt for your device(s). You should always write down the names and badge numbers of the officers with whom you meet. If there are privileged, trade-secret or other sensitive materials on the device, you should advise the seizing officer. And you should immediately engage legal counsel to ensure steps are taken to preserve and protect sensitive materials.
• Can you be compelled at the border to disclose account passwords? No. But the assertion of this right may extend your detention during the secondary inspection and foreign visitors may be denied entry. You also can expect CBP officers to inform you that the assertion of this right makes you look guilty.
• Are electronic and hard-copy materials that are protected by the attorney-client privilege exempt from disclosure? Not necessarily, but if you notify the inspecting or seizing officer of this fact, then review of those materials is subject to special procedures. These procedures include requiring the CBP officer to seek advice from CBP Counsel before conducting a search of them.

There are good e-hygiene practices you can deploy when traveling internationally with electronic devices that will minimize the damage from such intrusions, both in the U.S. and abroad. You can and should, for example, close all laptop programs and cell phone/tablet apps before entering a border zone. 

The most important thing you can do to protect yourself, though, is to store all sensitive materials in a secure cloud-based environment and not on your devices. If such materials are on your devices, they may not just be yours by the time you cross a border.

At the end of the day, the power of border officials derives from YOUR desire to cross the border. If you are a U.S. citizen or a legal resident, you will be allowed entry at the end of the day (unless you are arrested, but that is beyond the scope of today’s discussion).

For U.S. visitors without legal status, your “admissibility” is within the discretion of CBP officials. That said, you can always decide that entry is not worth the effort. My great hope is our friends and colleagues from abroad do not feel compelled to reach that conclusion.

Sinder is The Council’s chief legal officer. [email protected]

Herrington is a partner in Steptoe’s White Collar Criminal Defense and Financial Services Practice Groups. [email protected]