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Are You Ethically Bound to Protect Data During a Border Search?

Amidst the controversy over the in-depth searches of electronic devices on the border that are lawfully happening, the New York City Bar Association has chimed in with some advice for attorneys that could be subject to these border searches. The ethics opinion explains what an attorney's ethical obligations are when it comes to a border search of their electronic devices that contain client data, or privileged information.

The opinion provides some rather detailed advice, including a requirement that an attorney promptly notify any and all clients whose data or confidential information may have been disclosed as a result of a border search. The most important thing to remember as you protest the search: remain calm and polite, and take reasonable steps to protect your client's data.

Below, you'll find some of the steps provided in the NYC bar's ethics opinion.

1. Object

While it may seem obvious, minimally, you are ethically bound to speak up and object to the search, and explain the basis of your objection: you have attorney client privileged information.

2. Carry Your "Bar Card"

It can be helpful to actually carry your "bar card" or other official identification showing that you are actually a lawyer. ProTip: make sure it is a physical card and not something digitally stored in your phone. (It may sound silly, but an official card definitely makes you seem like one of the good guys, right?)

3. Ask for the Boss

If the agent insists on the search, request to speak with a supervisor. It is critical to remain polite, and simply continually explain that you are ethically required to protect your client's confidentiality and are exploring all avenues of legally doing so.

4. Mitigate Damage

Attempt to mitigate damages to clients. You should try to ask that certain files not be reviewed due to your ethical duties, or that any search be limited to a live visual inspection. For instance, permitting a visual inspection will be less intrusive than allowing a copy to be made.

As the ABA advises, the easiest way to avoid having client data searched at the border is by not having any with you. With the way electronic devices connect these days, it is entirely possible to clean a device from any confidential information before getting to the border.

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