By Michael Filbin
As technology continues to evolve and become an integral part of our everyday lives, issues regarding the Fourth Amendment and search and seizure laws are becoming increasingly apparent. While the United States in general eagerly awaits guidance and direction on search and seizures of electronic devices, lawyers in particular are anxious for a decision to be made regarding search and seizure of their electronic devices at the United States border.
Currently, the Fourth Amendment allows searches at the border without probable cause. Typically, when one travels, they have their cell phone and laptop with them. As we know, both devices contain an immense amount of data, and personal information. Because it is unclear as to how far these searches can go, it is reasonable to assume that any and all information on your devices are being reviewed when coming back into the country. This poses a heightened problem for professionals that have sensitive client information on their devices.
As of right now there are no sanctions in place for lawyers who travel outside of the country with client information; however, leading legal professionals are advising lawyers to take steps to safeguard their client’s information. This blog will not address the Fourth Amendment issues regarding searches of electronic devices at the border, nor offer any opinion on the repercussions for lawyers failing to protect their client’s information. Instead, it will highlight several ways to keep your client’s information safe when traveling abroad.
Because it should not be a surprise that your electronic devices will be searched, there are many options one can take to ensure your sensitive client data is not compromised. First, border searches do not extend to information in the cloud or information accessible from devices. Therefore, one option is to delete all information, and then access client data through the cloud or a VPN (virtual private network). Not only does this prevent client data from being searched, it also provides peace of mind that if your device is lost or stolen, you will still be able to access your files, and know they are not in someone else’s possession.
If the cloud or a VPN is not a viable option, lawyers at the very least can back up their devices prior to traveling, and delete anything that is not critical for their trip. Everything else can they be encrypted. Upon returning they can easily redownload everything that was deleted.
Finally, if a lawyer’s device is being searched with client information, the lawyer should alert the agent that the device has privileged or confidential information and ask that the data not be searched or copied, and then escalate the request to a supervisor.
Overall, searches of electronic devices at the border have played a critical role in prosecuting criminals, and keeping our country safe. Allowing lawyers and other professionals with similar confidential client data to bypass searches at the border, would undoubtedly place an undue burden on the government, and potentially create a loophole for nefarious individuals to go undetected into the United States. At the same time, clients should have a reasonable expectation that their confidential information shared with attorneys are safe from the government. Given the ease of accessibility to information in the cloud and remote servers, there is really no excuse for lawyers to carelessly allow their clients information to be seen when traveling abroad.
Student Bio: Michael Filbin is a second-year student at Suffolk University Law School. He currently is a staff member on the Journal of High Technology Law. Michael holds a B.S. in Finance from Stonehill College.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
