What If A Border Agents Seeks Your Smartphone That Includes Client Secrets




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Regular travelers are familiar with the protocols of
international travel, such as complying with various
countries’ requirements regarding possession of liquids or
certain agricultural products. But what is an attorney to do if a
customs agent asks to peruse the attorney’s smart phone? Or
if a customs agent asks the attorney to identify the clients that
attorney is meeting or working on behalf of in the foreign country?
Such questions can create a tension for attorneys between their
duty to comply with international travel directives and their duty
to preserve confidential or privileged client information in their
possession.

Whether international travel is required to conduct meetings,
close international deals with foreign clients or participate in an
international arbitration, trips abroad are becoming more common
across various practices. As a result of the concerns over
potential violations of attorney-client privilege at borders and
airports, the American Bar Association, in a 2017 letter to the
U.S. Department of Homeland Security (DHS) urged DHS to modify and
clarify the relevant directives and to adopt “standards and
procedures that CBP and ICE agents must follow before the contents
of a lawyer’s electronic device can be searched or seized at
the border.”

Thereafter, the DHS and ABA held a meeting to address the
ABA’s concerns. On January 4, 2018, the U.S. Customs and
Border Protection (CBP) issued a revised directive for border
searches of electronics that incorporated some of the ABA’s
recommendations. Border officers are now required to consult with
CBP’s senior counsel before searching devices containing
privileged or work-product protected material. Further, under the
new policy, officers are required to segregate privileged materials
from other information. Notably, the directive also clarified that
only material stored on the device may be searched; information
stored in the cloud should not be accessed. The ABA’s
then-President commented that while the revised directive is a step
in the right direction, “more clearly needs to be
done.”

Further, last year, members of the ABA Standing Committee on
Ethics and Professional Responsibility issued an electronic device
advisory providing recommendations to traveling
attorneys. 

Some of the ABA’s recommendations are:

  • Consider obtaining a new but
    inexpensive electronic device. Place only necessary information on
    the device, and minimize or avoid placing confidential information
    on the device.

  • Before approaching a border
    inspection area, consider placing electronic devices in
    “airplane” mode or having all Wi-Fi, Bluetooth and
    cellular connections terminated and disabled. Consider whether
    electronic devices should be powered down or locked.

  • If subject to border inspection of
    electronic devices, determine whether the officer is making a
    “request” or a “demand” for
    inspection.

  • Consider whether the Rules of
    Professional Conduct in your jurisdiction of licensure would permit
    you to consent to a “request” for inspection, or to
    accede to a “demand.”

Notably, attorneys are not required by the rules of professional
conduct to comply with these recommendations. Whether attorneys
adopt these recommendations in their own practices will depend on
the type of information attorneys have in their possession, as well
as the reasonableness of taking certain precautions. 

Given the complexities surrounding border searches, provided
below are some tips for attorneys to consider when traveling
abroad.

Evaluate the Necessity of Traveling with Electronic
Devices

Some attorneys may be able to travel without electronic
devices—this would completely eliminate any potential risks
that privileged or confidential information on an attorney’s
electronic device would be disclosed. This option may be optimal
for attorneys who have access to secure visitor laptops and/or
desktops that are provided by the firm or company in the foreign
jurisdiction.

For most attorneys, however, it is impractical or impossible to
travel without electronic devices, given their integration in the
contemporary legal practice. Those attorneys may consider limiting
the number of electronic devices that have confidential or
privileged information in their possession while traveling. The
fewer devices, the less likely it is to inadvertently provide
access to privileged information.

Consider Two-Step Verification and Encryption

If leaving electronic devices behind proves infeasible,
attorneys may consider various methods to ensure privileged and
confidential data is not accessible by others. The chosen method of
protection may depend on the nature of the confidential and
privileged information within the attorneys’ possession. Many
firms have computer systems that require two-factor verification
(also known as two-factor authentication), which can provide an
additional layer of security to ensure that only authorized
individuals are able to gain access to client documents and
information. Further, many law firms utilize databases that allow
privileged and confidential documents and information to be
securely stored within the system rather than the laptop
itself.

If attorneys choose to travel with privileged and confidential
documents stored internally on their devices, they may consider
encryption as a practical protective measure. Law firms’ IT
departments may be able to provide assistance in this regard. It is
critical to create a strong password to access the device to ensure
that encrypted files remain protected.

Consider Asserting a Privilege Objection

Consistent with the CBP’s revised directive, if stopped at
the border by an agent who requests access to an attorney’s
electronic advice, attorneys may identify themselves as members of
the legal profession (e.g., provide business card or bar admission
card) and advise the border agent that the device contains
confidential and/or privileged information that is protected under
U.S. law. If, despite best efforts, the disclosure of privileged or
confidential information appears imminent, attorneys may object to
the search on privilege grounds. Specifically, attorneys can:

  1. Advise the border agent that the
    requested search is nonroutine;

  2. Instruct the agent not to read
    privileged documents; and

  3. Request that the agent consult chief
    counsel to determine whether a warrant or subpoena must be
    sought.

These steps also comport with Looper v. Morgan,
Civ. No. H-92-0294, 1995 U.S. Dist. LEXIS 10241 (S.D. Tex. June 23,
1995) (holding that a warrant or subpoena is required to conduct a
non-routine search that involves reading documents subject to a
claim of privilege).

A privilege objection, however, may be inappropriate or
unnecessary at the borders of certain countries, such as Canada.
The propriety of such an objection will depend on the facts and
circumstances. For most attorneys, it is helpful to have your
firm’s general counsel or other risk adviser on speed dial to
help evaluate the attorney’s duties and next steps (including
to determine whether client disclosure is advisable).

Inform Affected Clients

If confidential information is disclosed, with or without a
subpoena or warrant, an attorney’s immediate next steps may
be to advise the affected clients regarding such disclosure. Prompt
disclosure can help to mitigate the risk of any collateral damage
(i.e., the filing of a malpractice lawsuit or bar complaint).

While the issue of border control is a sensitive and evolving
issue, attorneys have several options to balance their obligation
to maintain privilege and confidentiality with state interests in
reviewing electronic devices.

About Dentons

Dentons is the world’s first polycentric global law firm. A
top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm
is committed to challenging the status quo in delivering consistent
and uncompromising quality and value in new and inventive ways.
Driven to provide clients a competitive edge, and connected to the
communities where its clients want to do business, Dentons knows
that understanding local cultures is crucial to successfully
completing a deal, resolving a dispute or solving a business
challenge. Now the world’s largest law firm, Dentons’
global team builds agile, tailored solutions to meet the local,
national and global needs of private and public clients of any size
in more than 125 locations serving 50-plus countries.
www.dentons.com
.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.



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