> In response to Mr. Malik’s assertion of privilege, Officer Sullivan informed Mr. Malik that DHS was seizing the iPhone and that the digital contents would be

> In response to Mr. Malik’s assertion of privilege, Officer Sullivan informed Mr. Malik that DHS was seizing the iPhone and that the digital contents would be searched. Officer Sullivan did not disconnect the iPhone from the internet or the communications network. He failed to take action that would protect the iPhone from accessing the internet or a communications network. Officer Sullivan ordered Mr. Malik to leave the deferred inspection area without the iPhone while the iPhone still was connected to the internet and a communications network. That's the part I was curious about. For a while now, the suggestion shared by bar associations [on both sides of the border] has been that assertions of privileged should always, always, always be accompanied by disconnecting the device from the internet. Here is a letter [1] from 2017 sent by [President of] the ABA to policymakers on changes that should be made to the process; but I'll just summarize the relevant part: [Linda Klein, ABA President] suggested that, if and when a lawyer travels across the border with any electronic device that could contain privileged or otherwise confidential client information, officers should only be allowed to conduct a standardized, cursory physical inspection - AND - unless the officials obtain a subpoena based on reasonable suspicion or a warrant supported by probable cause, border agents should absolutely not be allowed to read, copy over, seize or share any privileged or confidential documents and or files stored on those devices. For an attorney, the professional obligation to do everything you possibly can to disallow unauthorized access to privileged materials is essentially the golden rule of the profession; NY/Michigan has, for a while now, strongly suggested to members that, in the event of a border agent getting dangerously close to accessing information they shouldn't - the attorney should escalate to a superior officer to find a solution where the privileged information remains confidential - but - this decision seems to renders escalating as a waste of time which really isn't great. Best thing to do is disconnect and power electronic devices off prior to presenting yourself at the border. That should be safest for the foreseeable future and I'm not aware of any specific challenges on whether LE should be allowed to power on/reconnect a device during an investigation - that would be an incredibly concerning development and thankfully we aren't there. At the end of the day, there are tons arguments for how these interactions should be conducted presented by both sides. The whole 'security' thing does have some merit - but allowing increasingly infringing behavior in the spirit of 'security' isn't something that should go unchallenged. [1] https://www.lexsage.com/documents/May%205,%202017%20ABA%20Letter%20re%20Solicitor%20Client%20Privilege%20at%20Border.pdf https://www.lexsage.com/documents/May%205,%202017%20ABA%20Le...