The ACLU and the Electronic Frontier Foundation have sued the Department of Homeland Security to block U.S. Customs and Border Protection personnel from searching travelers’ electronic devices without warrants. This has implications for lawyers who cross in and out of the U.S. with phones and laptops containing confidential client information. The CBP’s policy, which the ABA also has questioned, currently authorizes such searches even without a suspicion of wrongdoing.
We first wrote about the issue last month, when the New York City Bar Association published an ethics opinion raising the client confidentiality issues and advising that in some circumstances lawyers should consider using “burner” phones, and avoid taking client confidential information across borders.
The ACLU and EFF’s lawsuit, in Massachusetts district court, alleges violations of the First and Fourth Amendments on behalf of 11 plaintiffs whose electronic devices were searched as they reentered the U.S. None were subsequently accused of any wrongdoing.
The plaintiffs include journalists, students, an artist, a NASA engineer and a business owner — but no lawyers. Despite the absence of lawyers from the roster of plaintiffs, the client confidentiality issues are obvious, and have received a lot of notice. See here for the New York Times story on the lawsuit, and here and here for commentary on the N.Y. City bar ethics opinion.
I’d be interested in hearing whether lawyers have personal experience with border searches of their electronic devices.
Stay tuned for additional developments on this issue.