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How to Guard Your Laptop From a Suspicionless Search

Now that the Ninth Circuit has given border patrol agents the go-ahead to conduct suspicionless searches of travelers' laptops or other digital devices when they enter the country, lawyers need to figure out ways to safeguard confidential and privileged information from an agent's scrutiny.   Jennifer Granick of the Electronic Freedom Foundation offers these tips to protect yourself (and your clients' data) from suspicionless searches while traveling.

First, Granick suggests that you encrypt your hard drive, which at the very least will make it "prohibitively expensive to access confidential information."  But Granick adds that encryption is an imperfect solution, because border patrol agents may attempt to force travelers to enter their passwords so they can continue their search.  And while Granick argues that agents cannot force you to decrypt your data or turn over a password, that won't stop them from detaining you or even preventing you from entering the country.

A second option that many law firms and corporations now implement is providing employees with a forensically clean laptop loaded only with the data necessary for a particular trip.  However, this approach does not work where trade secrets or client information are the reason for the trip.  Alternatively, lawyers can bring a clean laptop and access the information they need over the Internet once they've arrived at their destination.  Of course, here, the Foreign Intelligence Surveillance Act (FISA) now allows surveillance of people located outside the United States without a warrant -- which means that your e-mail could be intercepted.  Thus, it's important to encrypt online transfers of confidential data. 

Lawyers can face liability for disclosure of confidential client data, even if inadvertent or, in the case of a border search, through no fault of the lawyer.   Clients harmed by the disclosure can sue for malpractice or violation of the duty of confidentiality.  And there's always the chance that they might pursue an ethics complaint as well.  The bottom line is that even though the Constitution doesn't protect citizens from searches of confidential information at the border, as lawyers, we must guarantee that protection, nonetheless.

Posted by Carolyn Elefant on May 2, 2008 at 12:58 PM | Permalink | Comments (0)

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