February 21, 2019 Substantive Law

Searches of Electronic Devices: Recent Developments and Judges’ Ethical Responsibilities

By Keith Fisher

Reprinted with permission from Business Law Today, February 2019. ©2019 by the American Bar Association. Reprinted with permission. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Background

Last year, I authored an article for Business Law Today discussing the ethical obligations of lawyers in connection with potential searches of confidential information on their portable electronic devices by the U.S. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE)—both agencies within the Department of Homeland Security (DHS).This companion article briefly considers the ethical obligations in this scenario of judges—including business court judges and bankruptcy judges—under the canons of judicial conduct. Like lawyers, judges should consider whether consenting to a device search by a CBP or ICE agent is compatible with their professional responsibilities.

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