Lawyers in Massachusetts are protected from search warrants that seek information about others.

By Massachusetts Lawyers Weekly Staff Editorial
Massachusetts Lawyers Weekly
Purses, Fruitcake tins, laptops — what's the difference?

BOSTON — Earlier this year, the U.S. Department of Homeland Security announced a new policy: It reserved the right to seize for an indefinite period of time laptops taken across the border.

Under the policy, customs agents can routinely seize, make copies of and "analyze the information transported by any individual attempting to enter, re-enter, depart, pass through, or reside in the United States. "

The new practice is aimed at detecting terrorists, those in the drug trade and people violating "copyright or trademark laws. "

This policy is problematic for attorneys, particularly because of attorney-client information that is privileged.

Lawyers in Massachusetts are protected from search warrants that seek information about others.

"[N]o search and seizure without a warrant shall be conducted, and no search warrant shall issue for any documentary evidence in the possession of a lawyer, ... who is known or may reasonably be assumed to have a relationship with any other person which relationship is the subject of a testimonial privilege, unless ... a justice is satisfied that there is probable cause to believe that the documentary evidence will be destroyed, secreted, or lost in the event a search warrant does not issue," say the relevant chapter and verse (G.L.c. 276, §1).

Thus, authorities could not seize an attorney's laptop with a search warrant in Massachusetts, but it seems that federal authorities could.

The scope of what can be seized includes one's BlackBerry or personal digital assistant. As a consequence, voice-mail messages and e-mail could be subject to inspection. Also included are digital cameras, dictation recorders and iPods.

And if one encrypts a hard drive, government officials could interpret the encryption as a sign the lawyer is "hiding something," prompting them to hold the hard drive when they might otherwise not do so.

Lastly, anyone who uses e-mail may have been unwittingly exposed to contraband images that violate federal and state statutes governing child pornography. The fact that one's virus-protection software may have intercepted the contraband, and deleted it, will not prevent the government from locating the deleted images on the hard drive and charging the "offender" with possession of the images. This scenario is not as far-fetched as it may appear.

The new policy on laptops may have been set forth with noble intentions, and it may help locate some nefarious individuals. But lawyers need to be aware of how strict the rules are and how they could affect client-privileged material.

Copyright 2008 Dolan Media Newswires