Bruce Green wrote an op-ed for Bloomberg Law about how lawyers can maintain digital privacy related to confidential client information during customs and immigration checks.
The public is accustomed to traveling, including internationally, with electronic devices (cell phones, laptop computers, etc.) that potentially store, or provide access to, vast amounts of personal information. As the Supreme Court recognized in a 2014 decision, Riley v. California, a cell phone holds “detailed information about all aspects of a person’s life,” and consequently “a cell phone search would typically expose to the government far more than the most exhaustive search of a house: . . . a broad array of private information never found in a home in any form – unless the phone is.”
Lawyers in particular have grown accustomed to traveling not only with their own information but with clients’ information – attorney-client emails, documents relating to legal representations, etc. Lawyers traveling internationally have been alerted to the risk – however remote – that they will be on the receiving end of warrantless, suspicionless border searches of their cell phones and computers, which could in theory lead to government review and capture of not only their own information but also clients’ confidential and privileged information.
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With respect to clients’ attorney-client privileged and confidential information in particular, earlier government releases indicated that a border agent must seek an additional review or authorization prior to conducting a search of information that an attorney claims is confidential or privileged.