June 01, 2018 Feature

Border Searches and the Limits of Encryption in Protecting Privileged Information

Steven G. Stransky | The author is senior counsel at Thompson Hine LLP, Cleveland.

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Do you encrypt your electronic devices before traveling abroad to protect sensitive or privileged information? Some of the more scrupulous attorneys among us do; they proactively encrypt their electronic devices containing privileged information to avoid the risk of intrusive searches by border patrol officers. But does this prevent sensitive information on your device from being reviewed by the authorities? Not fully. Although the use of encryption is an important data security practice for all attorneys, it may not protect privileged information from the highly sophisticated decryption tools readily available to intelligence agencies. In fact, a closer review of the federal policy governing the inspection of electronic devices at the border reveals that the U.S. intelligence community is authorized to assist border screening efforts by providing decryption and other technical services.

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