Ethical rules require attorneys to strictly maintain client secrets and take every effort to safeguard those secrets. So should you worry if your lawyer keeps your client information on a laptop computer, an i-Pad, netbook, cell phone or USB device? Is that data safe so long as the device is password protected or when the data is encrypted? Not if the lawyer travels through a United States border or the “functional equivalent” of a border.
Travel through border crossings, international arrival terminals, and border checkpoints (even miles from a border) is subject to extremely relaxed rules that allow law enforcement almost unfettered access to containers, luggage, and electronic storage devices. In applying a Fourth Amendment analysis to a border search, most courts consider an electronic device such as a computer as essentially the same as piece of luggage, in almost all circumstances.
And, yes, encryption software is easily cracked, so if the government really wants the data they can get to the data.
A search may be unlawful under some circumstances, such as where a search is conducted in such a way that the device or data is damaged, if the device is maintained by the government for a prolonged period without any justification, or if the data is mined without any safeguards to protect attorney-client privileged information. But some people may reasonably lack confidence that law enforcement will be careful to follow the rules when searching a lawyer’s computer. If you are one of those people you might ask your attorney how they will safeguard your information when travelling.
Feel free to contact us for advice at info@attorneylombardo.com
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