Lawyers, Laptops, Borders and Confidential Client Materials

The Department of Homeland Security is now authorizing itself to seize laptop computers at border crossings, and to hold them for as long as they want. Not to look for hidden bombs in the guts of the machines, but to look at the contents of the documents that it holds. For lawyers crossing a border with sensitive attorney-client documents, a potentially huge ethical problem has been created with such a handover.

Courtesy of Scott Greenfield, I learn that the Washington Post reported:

DHS officials said that the newly disclosed policies — which apply to anyone entering the country, including U.S. citizens — are reasonable and necessary to prevent terrorism. Officials said such procedures have long been in place but were disclosed last month because of public interest in the matter.

The policies state that officers may “detain” laptops “for a reasonable period of time” to “review and analyze information.” This may take place “absent individualized suspicion.”

Greenfield dealt with the issue from the standpoint of unregulated government power. Marc Randazza discusses the same news from the standpoint of moral outrage.

But this is a huge problem not just if you lose your laptop for a few weeks or months, but from the standpoint of actually handing over to the government confidential client information. That is, information that one is ethically prohibited from disclosing.

How does a lawyer with a laptop that contains his confidential files now cross a border if they are at risk of disclosing the confidences? This could be criminal investigations where the government itself is involved. It could be mergers and acquisitions. It could be anything.

And not just the laptop, but also the Blackberries and iPhones are at risk. If a laptop can be seized for an indefinite period, why not the handheld devices with all the messages from (or about) clients and pending matters? I wrote about this last year in iPhones, Attorneys and Ethics and the problem of turning over an iPhone (which has a non-removable batter) to some outside person for repair without the opportunity to delete the emails.

From an ethics standpoint, the lawyer crossing the border with client information has a whopper of a problem.

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