The increased incidence of U.S. Customs and Border Protection (“CBP”) searches of electronic devices has raised concern about protecting client confidential information. A new formal opinion issued in July 2017 by the New York City Bar provides valuable guidance for lawyers.
In April 2017, CBP reported that its searches of electronic devices in the first six months of its fiscal year were nearly twice as frequent as in the previous sixth month period. Although the percentage of travelers whose devices are searched remains very small, the increase in searches prompted the ABA to ask the Department of Homeland Security to revise its directives on searching a lawyer’s electronic device at the border. Until the Homeland Security directives change, CBP agents assert broad powers to search electronic devices with or without reasonable suspicion of wrongdoing, to demand an owner’s password to access the device, and to retain the device for further scrutiny.
The New York City Bar opinion identifies three steps lawyers can use to protect client confidential information from review at the border.
- First, minimize the client confidential information contained on your device, and carry as few devices as possible. The New York City opinion suggests travelling with a blank “burner” telephone or computer, using software securely to delete information from your device, and disconnecting your device from cloud and web-based services where data is stored. A lawyer who needs access to client confidential information during his travels must be ready to remove sensitive information and disconnect from the internet before returning to the U.S.
- Second, if a CBP agent asks to search your device, object. A lawyer should inform the agent that the device contains privileged information, request that such material not be searched or copied, and ask to speak to a supervisor. Producing one’s bar card or business card may help
- Third, if your device is searched, notify affected clients. A lawyer’s duty to communicate with her client dictates that a lawyer subjected to the search of her device inform affected clients of the border search, and the extent to which client confidential information may have been viewed or seized.
Any lawyer who travels out of the U.S. should review the New York City Bar opinion To paraphrase the old credit card commercial, “don’t leave home without reading it.”