Anthony Davis Writes about Ethical Obligations of Lawyers to Protect Client Information Stored on Mobile Devices while Traveling Abroad

Anthony Davis authored a New York Law Journal article titled "Threading the Needle: Protecting Client Information From U.S. Border Searches." In the article, Davis explores the risks lawyers face when travelling internationally and carrying mobile electronic devices that contain confidential client information. In particular, Davis reviews these risks in the light of the NYC Bar's recently issued Formal Opinion 2017-5.

Davis notes that while the Opinion assesses the risks that lawyers may face when trying to protect data on devices they bring in to the U.S., it is flawed in several respects. Davis describes how Opinion 2017-5 only addresses issues that may arise when entering the United States from overseas, not those associated with taking information outside the United States and overseas into foreign jurisdictions. In relying on the Rules of Professional Conduct that lawyers management of client data must be "reasonable," the Opinion does not present clear and uniform guidance as to how that applies in practice when lawyers take devices containing confidential client data overseas (or bring them back into the United States). "What is needed is clear and specific guidance as to what is required, what is permitted, and what is unacceptable, when lawyers travel overseas with devices containing client information," Davis said. "This clarity is not provided by Opinion 2017-5, and arguably is beyond the scope of any ethics opinion."