As customs and border protection agents search more electronic devices, how can lawyers keep client information secure

January 01, 2026 Ethics

As customs and border protection agents search more electronic devices, how can lawyers keep client information secure?

By Anna Stolley Persky

The government is searching more cellphones and laptops of international travelers than they have in the past, and lawyers need to take extra steps to protect client information.

By its own numbers, U.S. Customs and Border Protection is increasingly searching phones, computers and other electronics belonging to international travelers. Between April and June of 2025, CBP agents searched 14,899 devices, a spike of 16.7% from the prior significant three-month surge in 2022.

Tom McBrien, counsel for the Electronic Privacy Information Center, says searches of electronic devices are "becoming more and more of a practice."

In addition, President Donald Trump's administration, through executive orders, has targeted specific law firms for their work on cases or issues, and lawyers are on edge, McBrien says.

"There is a perception that attorneys and regular people who may be suspicious in this administration's eyes are much more likely to have their devices searched," he says.

With increased searches at the border, lawyers should be extra vigilant about securing protected attorney- client information on their phones and laptops when traveling, privacy experts say, ensuring they are following professional conduct guidelines and best practices.

Rule 1.6 of the ABA Model Rules of Professional Conduct says lawyers "shall not reveal information relating to the representation of a client" without informed consent or when disclosure is implied to carry out representation. In addition, the rule states that lawyers "shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client."

John "Jay" R. Schleppenbach, a partner in the Chicago office of Shook, Hardy & Bacon who specializes in white-collar criminal defense, says "reasonableness is the key here."

He adds that lawyers should take precautions in protecting client information ahead of any travel and object to any attempts by CBP agents to gain access to client information.

If agents demand that a lawyer open a cellphone or computer that contains privileged information, lawyers should object to sharing any privileged information and elevate the interaction to a supervisor, Schleppenbach says. He adds that lawyers shouldn't be expected to go to jail or be denied entry to a country by continuing to refuse access.

The U.S. Supreme Court has long established that a heightened interest in protecting national security, along with a decreased expectation of privacy, means that routine border searches aren't subject to the typical requirements of reasonable suspicion, probable cause or warrant.

In 2014, the Supreme Court ruled in Riley v. California that a warrant is generally required before law enforcement officials search a cellphone during an arrest.

However, the court hasn't yet specifically addressed border searches of phones, and the circuit courts have split on the level of probable cause or suspicion necessary for searches of cellphones at the border.

In 2017, then-American Bar Association President Linda Klein wrote a letter to the Department of Homeland Security expressing concerns about the preservation of client confidentiality and attorney-client privilege during border searches of electronic devices.

A year later, CBP issued a directive that required agents to segregate privileged information and consult with senior counsel before searching electronic devices containing privileged or work-product information. In addition, the agency's directive clarified that only material stored on the device could be searched and that data stored in the cloud was off-limits.

In January 2019 at the midyear meeting in Las Vegas, the ABA House of Delegates said the federal judiciary, Congress and the Department of Homeland Security should set standards for searches of electronic devices to protect attorney-client privilege, the work product doctrine and lawyer-client confidentiality. In a resolution overwhelmingly passed by the House of Delegates, the ABA announced support for requiring a warrant based on probable cause for forensic searches and seizures of electronic devices carried by American citizens and lawful permanent residents crossing the border.

The agency did not return repeated requests for comment. Its website notes that in 2024, border agents searched the electronic devices of 47,047 travelers, representing less than .01% of all international travelers arriving at a U.S. entry port.

CBP has two types of searches: basic and advanced. Basic inspections are routine and may include manual perusals of electronic devices. Advanced searches involve a more invasive forensic examination and are done when there is "reasonable suspicion" of activity in violation of the laws enforced or administered by CBP or when there is a "national security concern."

Reasonableness is key

Sophia Cope is a senior staff attorney at the Electronic Frontier Foundation, a nonprofit devoted to digital privacy and free speech.

When it comes to refusing to unlock devices, Cope says, American lawyers have more leeway than non-U.S. citizens because they have the right to return to the country.

"But," she adds, "that doesn't mean there won't be consequences" like being delayed or having the device confiscated.

In addition, Cope notes that lawful permanent residents could potentially risk their status by refusing to allow access to their devices, even though they technically must be allowed back into the country.

David Jones, co-chair of Fisher Phillips' national immigration practice, writes about international travel and data security risks. He says lawyers traveling abroad should consider traveling without a laptop or bringing a loaner laptop that is "clean" of any client information. If neither option is possible, Jones says, lawyers should ensure that as much client data as possible isn't on devices, but instead retained in secure cloud storage providers.

And lawyers should take extra steps to reduce the accessibility of computers and phones, such as ensuring they are turned off, encrypted, password-protected or any other extra step that reduces their accessibility, Jones says. In addition, he says, turn off face ID.

He also suggests logging out of email accounts and stopping syncing from other devices, services and applications.

According to Cope, a wiped phone or computer keeps agents from easy access to information, but it can also make them suspicious.

"Be prepared for extra questioning," she says. "Lawyers are probably pretty well prepared compared to the average traveler when it comes to confrontation."