Most “Miranda Warnings” are named for Ernesto Miranda, whose rape-and-kidnapping conviction was overturned after the police failed to advise of his right to counsel. On retrial, Ernesto was convicted again. Released on parole, Ernesto lost a knife fight at the Amapola Bar in Phoenix, and was dead by age 35.
This particular Warning relates to a very different Miranda. David Miranda is the partner of Glenn Greenwald, who writes for The Guardian about Edward Snowden, the NSA, and who is reading your email. Recently, David was traveling from Germany to Brazil to meet Glenn, with a connection at Heathrow. During the layover, Her Majesty’s authorities, after nine hours of detention, seized David’s laptop, phone, two memory sticks, two DVDs, a Sony games console, smart watch, and a hard drive.
We take no position as to the degree of outrage, if any, that should be hurled at the UK officials, Mr. Miranda, the NSA, Mr. Snowden, or anyone else. If you want to blame anyone, you can always follow this internet meme:
We will just note here that David appeared ignorant of the risks of bringing confidential information across borders.
So, for this particular Miranda Warning, keep in mind:
Lawyers are ethically bound to keep our client’s secrets, in any form. While good policies and savvy IT departments can take steps to minimize some of the risks (starting with mandatory password protections), there is no substitute for vigilance. Carry only what you need, keep things close to you, and if you lose something, deal with it immediately.
For international travel, be aware that, whenever you cross a border, you and your possessions are subject to inspection. So, think about where you’re going and what you need to bring with you, and what might happen were it to be seized by a foreign government. Consider traveling with a clean loaner laptop.
It’s not just foreign governments, either. For travelers coming into the US, be aware that US Customs and Border Protection agents can, without any individualized suspicion, seize your laptop, smartphone, or other device, and keep it for weeks or months. According to one report, US Border agents seize 300 electronic devices a month. Border agents also can demand your passwords, and if you refuse to cooperate, you can be denied entry into the country.
So, what do you say when the US Customs officials asks you to turn over your laptop and hand-over your password?
- Don’t lie; don’t obstruct. Those are crimes. Do be polite. Very polite.
- Politely explain you work for a law firm and are carrying privileged and confidential client information. Ask if you can speak with a supervisor. See if there is any way to address their concerns without turning over the data.
- Keep a record. Record times, names, badge numbers, and other details. Request that they follow the protocols and policies for dealing with Privileged or Other Sensitive Material. Request a Form 6051D Custody Receipt for any materials seized.
- After you’ve been allowed entry, you may stop being polite. Report the incident to counsel immediately. Change your passwords.
For more information about these issues, check out this interesting take.
P.S. And, if you’re carrying encrypted secrets with you, maybe this wasn’t the smartest idea ever.