Border Security Erodes Attorney-Client Privilege

CBP officers searched a Detroit lawyer’s phone at the border, raising serious questions about the protection of attorney-client privilege in an age of heightened security measures.

At a Glance

• A recent 5th Circuit Court decision has reduced protection for attorney-client communications at borders compared to journalistic information
• Detroit lawyer Amir Makled was detained by CBP and asked to submit his phone for search after returning from international travel
• CBP claims it follows procedures to protect privileged information, but critics argue these measures are inadequate
• Travelers with sensitive data are advised to wipe their devices or use “burner” phones when crossing borders
• The Federal Privacy Protection Act offers stronger protections for those disseminating information to the public than for attorney-client communications

Constitutional Rights at the Border

The sanctity of attorney-client privilege, long considered one of the most protected legal relationships in America, faces new challenges at U.S. borders. A recent 5th Circuit Court decision has significantly reduced these protections for lawyers crossing international boundaries, creating a concerning gap in constitutional safeguards. This ruling came to light in the case of Malik v. DHS, where immigration lawyer Adam Malik had his phone seized and searched without a warrant, despite containing confidential client communications protected under normal circumstances.

The court upheld the dismissal of Malik’s complaint, setting a precedent that only minimal “reasonable suspicion” is required for intrusive searches at borders, even when attorney-client communications are involved. This stands in stark contrast to the treatment of journalistic materials, which require “probable cause” under the Federal Privacy Protection Act of 1980, creating an imbalance in constitutional protections that has alarmed legal professionals nationwide.

Detroit Attorney Confronts Border Security

The practical implications of this policy became evident when Detroit lawyer Amir Makled was detained by Customs and Border Protection officers at the airport after returning from the Dominican Republic. CBP agents demanded to search his phone despite Makled’s clear assertion that it contained privileged communications with clients. Makled’s firm specializes in civil rights, personal injury, and criminal defense cases, including representation of Samantha Lewis, a defendant from a Palestinian rights protest.

According to reports, CBP officers asked Makled to list privileged information on a legal pad, which he refused, maintaining that all information on his device was protected under attorney-client privilege. This confrontation highlights the challenging position attorneys find themselves in when crossing borders – forced to choose between potentially violating client confidentiality or facing extended detention and scrutiny from federal authorities.

CBP Policies Under Scrutiny

CBP Assistant Commissioner Hilton Beckham defended the agency’s actions, stating that Makled consented to a limited search and that the process followed was routine and lawful. According to official CBP policy, officers are required to seek clarification about documents potentially protected by attorney-client privilege and consult with the agency’s legal team if such privilege is asserted. However, critics question whether these procedures provide adequate protection when put into practice.

The agency claims it does not retain copies of privileged information encountered during searches, but this provides little comfort to attorneys concerned about initial exposure of confidential communications. In Malik’s case, CBP reportedly “bypassed the phone’s security features” to access content, raising additional concerns about the methods employed during these border searches and their impact on digital privacy rights.

Practical Advice for Travelers

Legal experts now advise travelers with sensitive data, particularly attorneys, to take precautionary measures when crossing U.S. borders. These include wiping electronic devices clean of confidential information or using temporary “burner” phones specifically for international travel. Additionally, travelers should be prepared to proactively assert their rights and carry a copy of the Privacy Protection Act, as ignorance of this law by enforcement officers can sometimes serve as a defense for intrusive searches.

The situation highlights an ongoing tension between national security interests and constitutional protections. While border security remains a priority for the federal government, many constitutional scholars argue that core American values, including the right to confidential legal counsel, should not be compromised at international crossings. This debate continues to evolve as more cases challenge the boundaries of government authority at our nation’s borders.