Courts have long made it clear that agents can search the bags of people entering the country. For the past decade or so, U.S. Customs and Border Protection (CBP) has applied that logic to digital devices. NACDL members are uniquely exposed to abuse in this context: digital devices store materials and information subject to the attorney-client privilege and attorney work-product doctrine, as well as information on overseas clients and witnesses, and other extremely sensitive materials that could be covered by Rule 1.6 of the Model Rules of Professional Responsibility.
NACDL recently released a primer will educate attorneys about the implications of CBP's claimed powers and offer strategies that will help them comply with their ethical obligations and responsibilities to their clients when entering the U.S. Along with the primer, NACDL compiled a resource of district court cases that deal with the border search exception and digital devices, with special attention paid to the influence of Riley v. California. Read "Protecting Your Digital Devices at the Border: A Criminal Defense Lawyer’s Primer" here and find the companion case list here.
On January 4, 2018, U.S. Customs and Border Protection issued a new directive on border searches of electronic devices. You can find it here. Please stay tuned for an updated version of our primer.
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