CURRENT MONTH (February 2021)

Professional Responsibility

2021 Bar Examinations in the Time of COVID-19

By Keith R. Fisher

As we approach the beginning of a second year of COVID-19 discommoding many aspects of life, it is, perhaps, not surprising, that many jurisdictions have planned remote (typically online) administration of their bar exams.  Based on information from January, of those jurisdictions offering a February 2021 bar exam (Delaware traditionally does not administer a February bar exam; Puerto Rico will administer its exam in March), the vast majority will be offered remotely.  Here is the breakdown:

February in-person exams:  Alabama, Alaska, Arkansas, Guam, Hawaii, Kansas, Minnesota, Mississippi, Missouri, Montana, New Mexico, Northern Marianas Islands, Oklahoma, Palau, South Carolina, South Dakota, Virginia, West, Virginia, and Wyoming. 

February remote exams:  Arizona, California, Colorado, Connecticut, D.C., Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Nebraska, Nevada, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Utah, Vermont, Virgin Islands, Washington, and Wisconsin. 

Planning for the July 2021 bar exam remains in flux, but some jurisdictions have already announced their intention to administer that exam remotely as well.  As of mid-February, these include:  Connecticut, D.C., Massachusetts, Pennsylvania, and Tennessee. 

The largest jurisdictions haven’t yet announced what they’ll do in July.  Note that most of them tergiversated over last summer’s exams and most of them ended up rescheduling them for the Fall.  Of those, most were administered remotely, but a sizeable minority (23 jurisdictions) held their bar exams in-person and urged examinees to wear masks and practice social distancing.

Note that online administration of bar examinations can present challenges, as there are significant implications for exam design, technological capacity, and exam security.  Technical difficulties (and the accompanying angst for test-takers) were experienced in several states.  Exam security was effected by the use of AI monitors through computer cameras of examinees, to detect the presence of unauthorized persons or materials in the room where each examinee was taking the test.  This was done, in part, by measuring the examinees’ eye movements.  This had an unexpected consequence in California, where over 400 examinees were notified that they were being investigated for possible rule breaking, such as having their eyes outside of their webcams’ view for too long a period of time.  

In yet another California development, the State Bar recently received a demand letter from the Lawyers Committee for Civil Rights Under Law, threatening “legal action” if the bar does not remove facial recognition technology from the February 2021 exam.  The letter asserts that use of the software is discriminatory (the phrase used was “unlawful disparate impact”) vis-a-vis women and people of color.  The State Bar rejected the demand, claiming that the software is necessary to verify the identities of test-takers and that the Lawyers Committee’s assertions are too vague to support any claim of discrimination.     

Ethics

First Circuit Restores Authority for Border Searches of Devices

By Keith R. Fisher

Prior articles of mine have discussed some of the ethics implications of border searches of attorneys’ and judges’ portable electronic devices by two federal agencies, Customs and Border Patrol (CBP) and Immigration and Customs Enforcement (ICE).  Just over a year ago we reported on the decision of the federal district court in Massachusetts, which ruled that, to justify border searches of portable electronic devices, border agents need “reasonable suspicion” (though not “probable cause,” which is the quantum of evidence that would support a warrant) that a device contains contraband.  That decision was recently reversed by the First Circuit. 

The district court enjoined the government from searching or detaining any of plaintiffs’ electronic devices at the border absent “reasonable suspicion that the device contains contraband,” and from detaining plaintiffs’ electronic devices for “longer than a reasonable period.”  The decision on summary judgment relied heavily on the Supreme Court’s 2014 decision in Riley v. California, which balanced the privacy interests in mobile phones against the government’s interest in conducting warrantless searches incident to arrest, to wit: officer safety and preservation of evidence.  Riley held that the Fourth Amendment requires police officers to get a warrant before searching an arrestee’s cell phones. 

Privacy at the border, however, is a different kettle of fish.  Border searches implicate the sovereign’s right to control who and what may enter the country and is justifiable from a number of different perspectives, including territorial integrity, national security, and interdiction of criminal conduct ranging from contraband to terrorism.  Such searches are a well-settled exception to the Fourth Amendment’s protections.

Finding that the district court’s emphasis on contraband and reliance on Riley were misplaced, the First Circuit reversed that decision and ruled that U.S. border agents do not need warrants to search smartphones and laptops at U.S. ports of entry. 

The decision dealt with both “basic” searches and “advanced” searches.  The former are limited to data that’s on the device; the latter are more forensic examinations involving review, copying, and analysis — possibly requiring connection of external equipment — of the contents of a device, which may include deleted or encrypted material.

On basic searches, the court joined the Ninth Circuit and the Eleventh Circuit in holding that that basic border searches of electronic devices are routine searches that may be performed without reasonable suspicion.  The unanimous panel decision, authored by former Chief Judge Sandra Lynch, recognized that basic searches of electronic devices may reveal a trove of sensitive personal information, the court held that these concerns were tempered by the fact that the searches occur at the border, where the “Government’s interest in preventing the entry of unwanted persons and effects is at its zenith.”

On advanced searches, the court more broadly conceived border agents’ remit as not limited to contraband but encompasses any activity in violation of the laws enforced or administered by CBP or ICE.  This part of the decision is potentially in conflict with a 2019 Ninth Circuit decision holding that the border search exception is restricted in scope to searches for contraband.

The First Circuit also confirmed that detention of electronic devices for a reasonable period is constitutionally permissible as a general proposition.  The court left open the possibility of arguing that a particular detention was unreasonable. 

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