American Bar Association

ABA expresses concern about border searches of lawyer laptops and other electronic devices

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ABA President Linda Klein is expressing serious concern about standards that permit searches of lawyer laptops and other electronic devices at the border in the absence of reasonable suspicion.

In a May 5 letter (PDF) to the Department of Homeland Security, Klein seeks policies and procedures to ensure the confidentiality of privileged or confidential client material on the devices. A summary is here.

The letter says the ABA supports the critical role played by customs and immigration officers in protecting national security. “But just as border security is fundamental to national security,” Klein writes, “so too is the principle of client confidentiality fundamental to the American legal system.”

The letter urges DHS to clarify directives governing border searches of electronic devices by U.S. Customs and Border Protection and by Immigration and Customs Enforcement.

Current policies do call for special handling of privileged and confidential legal materials in border searches, but the ABA is concerned that the provisions are not sufficiently clear or comprehensive, Klein writes.

Klein says the directives should state that privileged or confidential client information on lawyers’ electronic devices should not be read, duplicated, seized or shared absent a subpoena based on reasonable suspicion or a warrant supported by probable cause.

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