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In response to a letter from, and meeting with, the ABA, the Department of Homeland Security has released revised guidelines when it comes to border agents searching the electronic devices of lawyers that contain privileged information.
The whole warrantless border searches of electronic devices controversy has been brewing for some time now. And while regular folks, even journalists and high powered business execs, may be all but defenseless when a CBP agent demands to search their electronic devices at the border, thanks to the ABA, lawyers have a new tool to at least defend themselves: bureaucratic inconvenience and paperwork. Unfortunately, the details are much less comforting.
Updated Procedure, Still No Good
If your device is being demanded, you probably cannot deny the demand, though you can make it really inconvenient and a lot more work for the CBP agent (though this can also result in much more inconvenience for you). You can explain that there is attorney-client privileged materials on your device, and request that you be allowed to identify those materials in writing, just like you would on a privilege log in litigation. Doing so will trigger the special protections and require that counsel from the CBP and U.S. Attorney's Office ensure that privileged info is segregated and handled appropriately.
Making matters even worse, CBP agents can detain devices for a "reasonable" period of time, which could range from one to several weeks.
Say It Loud, Say It Proud, but Use the CLOUD!
Interestingly, while the revised rules make CBP's accessing of privileged information more inconvenient, if you're tech savvy enough, you can avoid having privileged and confidential information on your devices entirely.
Depending on the software you use to manage your client files, you may be able to store your files in the cloud, and thus, out of the reach of a CBP agent's warrantless device search. But be wary, as privileged and confidential information stored in the cloud can be easily transferred to your device, and even if it's there temporarily, it wouldn't be protected by the cloud-storage exception.