White-Collar Crime

Do You Have Ethical Obligations When Customs Tries To Search Your Phone?

Time to buy a burner.

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Legal practice is now global. The globalization of criminal law — especially white-collar practice — isn’t new. The National Association of Criminal Defense Counsel’s annual white-collar conference is coming up, and as a reflection of the globalization of criminal law, there’s what looks to be an excellent panel about transnational cases featuring lawyers from all over the world. Even Niels van der Laan, a very talented Dutch lawyer, is gracing American shores with his presence.

(And, as I’ve said here before, if you want to do white-collar work, you should really go to the NADCL conference. It’s excellent. By which I mean substantively excellent; you’ll actually want to go to the sessions, which is not necessarily true of every conference out there. The conference is coming up from September 14 and 15. Seriously, you should go.)

Of course, when cases get international, lawyers travel overseas.

This is good; it gives lawyers an excuse to do what we love most — humblebrag. (e.g., “My life is so hard, I’m so successful and talented I have to work all the time.”) Perhaps the only thing more satisfying that setting an out of office email that contains the phrase “I am currently out of the country working on a case” is saying, when the Mueller investigation comes up in conversation, “I can’t talk about it, I’m representing someone in that matter.”

As lawyers cross borders, though, new issues arise. One of them is that our federal government has been getting more aggressive about searching electronic devices at the border.

There was, for example, a relatively high-profile case in the early days of the Trump administration when a U.S.-born NASA scientist was detained at the border and his phone was searched. Apparently, he was selected for a random search because when he was born he was randomly assigned non-white skin and the name “Sidd Bikkannavar.” Customs and Border Patrol asked for his work phone and the phone’s PIN. He was unsure what to do, but gave them to him. They searched his phone.

Of course, this means that a lawyer’s phone — or computer — could be searched at the border. I’ve crossed the border plenty with electronic devices and never been searched, but, then again, I look like I’m from Iowa. (I carry myself with a solid pro-America judgment that suggests I should have a disproportionately large role selecting who will be President.)

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But lawyers will be searched at the border. And those lawyers will be asked for passwords to search their electronic devices. And those electronic devices will have client confidences on them.

This raises an ethical issue — what is a lawyer required to do to protect those client confidences?

The New York City Bar Association has issued an ethics opinion on this question. It’s here.

There’s a lot in the opinion, and I’d encourage folks to read it. You already should know — if you’re a lawyer — that you have an obligation to take reasonable measures to protect client confidences and secrets from disclosure to a third-party. The opinion has a discussion of what counts as “reasonable” when you’re crossing the border with 60 gigabytes of client secrets. One suggestion is to buy a burner and only cross the border with that phone.

Again, it’s a very useful opinion and lawyers who cross borders should read it. Kudos to the New York City Bar for issuing it. But, again, I can’t help but think that perhaps changing the way our government interacts with its citizens would be a better alternative.

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When CBP’s tactics drive lawyers to adopt the practices of Stringer Bell, there may be a reasonable question about whether those CBP tactics are really a good idea.

Matt Kaiser is a white-collar defense attorney at KaiserDillon. He’s represented stockbrokers, tax preparers, doctors, drug dealers, and political appointees in federal investigations and indicted cases. His twitter handle is @mattkaiser. His email is [email protected] He’d love to hear from you if you’re inclined to say something nice.

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