This piece is not specifically on point with the subject of making minutes and resolutions for your small business or closely held company. However, most small business owners find they have to travel internationally at least occasionally, whether to visit suppliers, for seminars, or on a family vacation.
If you are planning to enter or re-enter the U.S. or otherwise deal with customs officials at ports of entry checkpoints, you likely should take a few moments to contemplate the realities you face when you transport your digital devices and computers, including smartphones. They probably are loaded with private information, such as your contacts, banking or other financial information, and other sensitive or confidential information or intellectual property. If you are a medical professional, you may be carrying HIPAA information. If you are an attorney, you might have “privileged” information or work product on your device.
If you’re not sure how it works when you go to clear customs, I suggest you read this succinct “Client Alert” recently authored by attorney Sara Jodka, Of Counsel for Dickinson Wright entitled “If You Don’t Need It, Don’t Pack It: Border Searches of Mobile Devices”.
Ms. Jodka informs that several cases are currently pending pertaining to Border searches of cellphones. Earlier this month, the U.S. Eleventh Circuit Court upheld the conviction of a warrantless search of a Florida man’s cell phone by Border agents. The man had child pornography on his cell phone.
The court held that warrantless cell phone searches, even without probable cause, are not in violation of the Fourth Amendment protection against illegal searches and seizures.
From the 11th Circuit Court’s decision in USA vs. Hernando Javier Vergara:
[Hernando Javier] “Vergara returned to Tampa, Florida on a cruise ship from Cozumel, Mexico with three cell phones: a Samsung phone inside a bag in his luggage, an LG phone, and an iPhone. Christopher Ragan, an officer with U.S. Customs and Border Protection, identified Vergara and searched his luggage. Ragan found the Samsung phone in Vergara’s luggage, he asked Vergara to turn on the phone and then looked through the phone for about five minutes. During the search, Ragan found a video of two topless female minors. After watching a few seconds of that video, Ragan called investigators for the Department of Homeland Security.
After viewing the video and interviewing Vergara, Terri Botterbusch, a Special Agent with the Department of Homeland Security, decided to have all three phones forensically examined. Agents later returned the iPhone to Vergara’s niece after a forensic examination revealed that it did not contain any child pornography.
A forensic examination of the Samsung and LG conducted that day phones also revealed more than 100 images and videos, “the production of which involved the use of a minor engaging in sexually explicit conduct and the visual depictions were of such conduct.” Neither the earlier manual search nor the forensic examinations damaged the phones. A grand jury later indicted Vergara on two counts: (1) that he “did knowingly transport in and affecting interstate and foreign commerce one or more visual depictions, the production of which involved the use of a minor engaging in sexually explicit conduct and such visual depictions were of such conduct”; and (2) that he “did knowingly possess numerous matters that had been shipped and transported using any means and facility of interstate and foreign commerce, including by computer, which matters contained visual depictions of minors engaging in sexually explicit conduct and the production of which involved the use of minors engaging in sexually explicit conduct.” See 18 U.S.C.
§ 2252(a)(1), (b)(1); 18 U.S.C. § 2252(a)(4)(B), (b)(2).
The evidence was admitted after Vergara tried and failed to have it suppressed because it was obtained without a warrant. Vergara was convicted and sentenced to ninety-six months in prison with lifetime supervision after his release. From the court’s decision:
The court held a suppression hearing, at which Ragan and Botterbusch testified, and later denied Vergara’s motion. The district court ruled that the initial manual search did not require reasonable suspicion and found that “in any event, . . . Agent Ragan had reasonable suspicion to search the applications and settings of the phone for evidence of child pornography.” The district court also rejected Vergara’s argument that Riley v. California, 134 S. Ct. 2473 (2014), required the agents to obtain a warrant before conducting the forensic search. It reasoned that Riley did not apply to border searches. It agreed with the government that “if [Vergara] had entered the country with child pornography images in a notebook, the notebook would have been subject to inspection, and he cannot be allowed to insulate himself from inspection by storing child pornography electronically on his cell phone.” And it concluded that, in any event, the search was supported by reasonable suspicion.
From Jodka’s Client Alert:
On appeal, the 11th Circuit upheld the conviction finding that the search-incident-to-arrest exception to the warrant requirement did not apply to Border searches of cell phones. Instead, the court found that, since the cell phones occurred at the Border, not as searches incident to arrest, neither a warrant nor probable cause was required because, at most, border searches require reasonable suspicion, which was a point Vergara did not argue. [Dan’s reference: see search-incident-to-arrest.]
The court included a reminder from the United States Supreme Court’s Riley v. California, Case No. 13-132 (2013) decision wherein the Court held that: “The Supreme Court has consistently held that border searches are not subject to the probable cause and warrant requirements of the Fourth Amendment.”
Jodka cites a similar case:
In September 2017, eleven people sued the Department of Homeland Security after their phones and laptops were searched at United States airports at the northern border. The group alleged that their First and Fourth Amendment rights were violated when United States agents searched, and in some cases confiscated, their devices without a warrant.
Jodka provides further support for the ruling:
In June of 2017, the acting commissioner for Customs and Border Protection, wrote a letter to lawmakers informing them that agents are not permitted to look at data stored solely in the “cloud.” With that, it seems agents would be limited to data stored directly on the device, including photos, text messages, call histories and contacts, but it appears less clear whether they are permitted to search cloud-based apps installed on a device, which would include social media accounts and email.
On January 4, 2018, U.S. Customs and Border Protection (CBP) issued a Directive (CBP Directive No. 3340-04K_A) titled “Border Search of Electronic Devices” that provides that border searches of electronic devices are limited to “only the information that is resident upon the device,” and officers are prohibited from intentionally using the device to access information that is solely stored remotely. To avoid access to information stored remotely, officers will either request that the traveler disable network connectivity or, where warranted by national security, law enforcement, officer safety, or other operational considerations, the officers themselves will disable network connectivity. Thus, there is a “basic” search, which may be conducted without suspicion, and an “advanced” search, which requires officers to have reasonable suspicion of activity in violation of the laws CBP enforces or administers.
Interesting for certain professionals with confidentiality obligations, when an individual asserts the attorney-client privilege or the attorney work product doctrine, the officer is supposed to seek clarification – in writing, if practicable – from the individual asserting privilege to assist CBP in identifying the privileged information. This type of detail, however, does not appear to apply to other types of confidential information, such as trade secrets, business information, or medical records.
Jodka’s “Takeaways”:
We have not heard the end of this debate. This issue is likely to be one that goes up to the Supreme Court and, even when it does, it is unclear whether the issue of whether reasonable suspicion is required since it was not a point argued in Vergara. The Ninth Circuit Court of Appeals agreed with the government’s position that “reasonable suspicion is not needed for customs officials to search a laptop or other electronic device at the international border”. United States v. Arnold, 2008 WL 1776525 at *4 (9th Cir. 2008).
Finally, Ms. Jodka offers up an extremely valuable list of some “best practices” when you are traveling with your computers, smartphones, and other electronic devices. I suggest you carefully heed her offerings.
1. Those traveling abroad should be extremely careful and cognizant of all information they travel with, including what is accessible via a laptop or device.
2. The same logic that applies to physical packing for traveling should apply to packing electronically-accessible information. Don’t over pack. If you don’t need it, don’t pack it. This goes as far as, if you don’t need the device, do not take it at all.
3. Understand the contents on your device, how they are stored, and how they are accessed.
4. For information you may want to access later, transfer it to the cloud, ensure strong password protection, and disable the connection.
5. Carry a burner phone that allows you to make calls and ensure you have relevant numbers programmed into the phone.
6. If you have programs or applications open that access the cloud, which includes social networks, log-out and close them, and put the device in airplane mode.
7. Delete all programs, applications, and delete all data and information you do not need.
8. Transfer photos and videos to a cloud account and remove them from the device.
9. If you get selected, you can either cooperate to allow the search to go easily or you can be prepared to sit and wait. If you choose the latter, be prepared to have your device confiscated and returned to you at a later time, if at all.