The Economics Behind Customs and Their Cell Phone Policy

International law has always been a tricky business–let’s face it, all law is–but it’s getting especially brutal in the way it’s greeted and disrespected at the border, ask Blischak Law about it:

In fact, it’s becoming commonplace for customs officials to search the cellphones and other electronic devices of those attempting to cross from one country to another. That’s not such a great thing, especially since lawyers often have to travel in order to do business effectively. Does a government (such as the U.S. government) really have the legal right to search a private cell phone during any routine search? That question arises because recently a NASA scientist’s phone was searched at the border.

At first glance, that doesn’t really seem to make much sense. The scientist in question was born right here in the U.S. Then again, perhaps his name had something to do with it: Sidd Bikkannavar. Because he’s a scientist and not a lawyer, he didn’t know what his rights were. When asked for his phone and the pin number that would unlock the device, he gave them up. A search ensued. If it can happen to a NASA scientist, it can certainly happen to anyone.

That’s where it gets complicated. If your phone can be searched at customs, then any information bound by attorney-client privilege on that phone can be searched as well, effectively destroying that ethical trust. What can–or should–lawyers do when and if this becomes an issue?

One of the best ways to prevent this from becoming an issue is to question the government’s right to do this immediately. Not that lawyers can expect much flexibility from the Trump administration, but it’s good to test the waters before you set sail.

The reality is this: customs will do what customs has been ordered to do, and treatment of travelers differs from one country to the next. Lawyers must do whatever they need to do in order to reasonably safeguard data bound by the attorney-client privilege. First and foremost, it’s important to know where you’re going and how information will be treated by the government and customs agents where you travel. What are the risks regarding the confidential information with which you’ve been entrusted?

If you have such information and there is a reasonable expectation that the devices on which it is stored could be searched or breached at customs, then take action to reduce the risk. Ask to speak to whomever is in charge rather than immediately give up an electronic device when asked. Use burner phones when traveling. In order to dissuade officials from indiscriminately prying through information on these devices, make sure you carry documentation of a legal nature, and make sure they know who and what you are. If they don’t know you’re a lawyer, they’re not going to care one way or another.

If the information is breached at customs, then the affected parties must be notified immediately in order to decide what action be taken next. No matter what, it’s important to acknowledge that data is difficult to protect when traveling, and precautions are difficult to come by.