Most people think of communications between attorneys and their clients as being among those having the highest level of legal “privilege” against compelled disclosure to the government. And it is widely believed that the US lacks a Federal “shield law” protecting journalists against being forced to reveal confidential sources.
The assumptions are, in some situations and with respect to certain information, well founded. But a recent Federal decision by the 5th Circuit Court of Appeals has belied those assumptions and created a situation — at least in the 5th Circuit — in which attorney-client communications have significantly less protection at borders and ports of entry than information in the possession of journalists and others involved in communicating information to the public.
This makes it more important than ever for all travelers — including lawyers who assume that the information in their possession is best protected under the attorney-client privilege, and individuals who don’t think of themselves as journalists — to be familiar with the protections of the Federal Privacy Protection Act of 1980 (42 US Code §2000aa), and to proactively assert their protected status and their rights under this law if their data or devices are searched or seized
Here’s what was decided in this recent case about attorney-client communications, and what protections travelers still have pursuant to the Privacy Protection Act: