Ecuador: "How Does It Feel To Be On Your Own" When Border Agents Ask For Access To The Information In Your Electronic Devices?

Last Updated: 9 October 2018
Article by Bruce Horowitz
Most Read Contributor in Ecuador, November 2018

At this panel presentation, you will be listening to and interacting with four attorneys with long experience in the legal, organizational and technical aspects of the limited powers of the government to gather information without a warrant; the 1st Amendment, 4th Amendment and Privacy rights of U.S. Citizens, Residents and others people entering the United States of America; and the obligation of attorneys to protect their clients' confidential information.

This short paper is about all lawyers' ethical obligation to protect the confidential information of their clients. While we all have a sense of the Lawyer Ethics Rules concerning attorney-client privilege, this paper takes you one step away from the minutia of those rules and interpretations of how to respond to information requests from government officials under different circumstance.

This paper will, hopefully, allow you to see how you might feel in the shoes of others (non-lawyers in each case, and the shoes of one lawyer in the position of "client" in one case), who truly believed that they had an ethical obligation to protect their "client" (or be protected) against demands for access to information by government officials.

For a Domestic Violence Counselor

In the winter of 1980, the wind and snow were howling outside the State Court House in Juneau, Alaska. Inside the court, a young woman was standing before Judge Tom Stewart. The young woman was a counselor at the A.W.A.R.E. Shelter for Victims of Family Violence, the first such shelter in the State. Judge Steward had supported the enactment of the recent State Law to protect women and children in domestic violence situation, but at this moment, he was asking the young woman who counseled victims of domestic violence to repeat what her client had told her in confidence at a counseling session about certain violent acts allegedly committed by the victim's husband.

This domestic violence counselor was standing before the court rather than sitting in the witness stand because she been brought to court for refusing to testify in a criminal trial against the battering victim's husband. As in many states, Alaska prohibited forcing one spouse to testify against the other spouse, so the District Attorney had chosen to subpoena the spouse's domestic violence counselor instead.

Judge Steward had already asked her two times. This was the third and final time the Judge would ask her to repeat what her client had told her in a counseling session at the women's shelter. The Judge was telling her that if she did not answer, then she would be imprisoned until she did tell.

The howling wind outside could not be heard over the silence in the courtroom.

The domestic violence counselor then repeated for the third and last time that confidentiality was necessary for victims of domestic violence so that they could speak all of the truth to their counselors in order for the psychological healing to begin for the battered victim and her children. In this case, the victim had refused to authorize the counselor to repeat or describe the victim's story. The counselor said that she could not divulge what her client had said to her in confidence.

After a few more moments of silence, Judge Stewart said that the counselor's desire to protect her client, and that to stick to her vow to protect client confidences was commendable, but that the law of the State of Alaska did not obligate a domestic violence counselor to protect her client's information even for the worthy purpose of the psychological health of the victim and her children, nor did the law recognize a battered victim's right to confidentiality in communication with a domestic violence counselor. Therefore, with great sadness (which was obvious to anyone in the court room), the judge ordered the bailiff to take the counselor to the waiting pen for transport to jail.

A Nurse

On September 1, 2017, a hospital nurse, Alex Wubbles, was attending to an unconscious and severely wounded patient at a hospital in Salt Lake City, Utah, when a police officer entered the hospital and asked to have a blood sample drawn from that patient. Under the hospital's patient protection rules a blood sample could only be provided based on a warrant or under a few other specified circumstances. The officer did not have a warrant, nor were the other specifications met, and the nurse read the hospital policy to the officer before refusing to allow the police to secure a blood sample without the consent of the patient. The police officer then forcibly arrested the nurse. In the video link, the reader may vicariously experience what it felt like to fulfill her obligation to protect her patient's confidential information.

Two Reporters

On May 3, 1998, the Cincinnati Enquirer began publishing a series of articles by two investigative reporters, Mike Gallagher and Cameron McWhirter, about questionable business practices by an American agro-business company in Latin America. The American company sued the newspaper; and Mr. Gallagher was indicted for theft of voicemail messages.

In 1999, Mr. Gallagher testified in court, that "protecting a confidential source was 'one of the highest responsibilities a journalist has.'''

Perhaps because Mr. Gallagher had lied to his editors about how he was personally entering the company's voice mail system to collect the information, he decided to negotiate with the prosecutors; and he pleaded guilty on two counts of stealing voicemail messages. He provided the grand jury with the name of his confidential news source, an American lawyer who had worked for the company in Latin America and the United States, and who had provided the Mr. Gallagher with access to the company's voicemail system.

The former company attorney, who was one of Mr. Gallagher's confidential news sources, was indicted on 10 counts of providing illegal access to the voice-mail system.

Despite prosecutorial threats of indictment, the other reporter, Mr. McWhirter, who had had contact with other confidential sources, refused to identify any of his confidential news sources for the story. As Mr. McWhirter later wrote for the Columbia Journalism Review,

"The special prosecutor wanted me to do something simple: sign a piece of paper agreeing to waive Ohio's shield law. Doing so would require me to disclose confidential sources with whom I had spoken during the yearlong investigation. He made clear that the risks of not cooperating were great, and threatened to indict me on unspecified charges. I could lose my job; I could go to jail, he said. I must fully cooperate and waive the shield law or he would come after me. His threats, for a while delivered hourly in telephone calls to my lawyer, ranged wildly. He claimed he was going to prosecute me for being a co-conspirator of some kind.

. . . .

My challenge was in that room with the chain-smoking special prosecutor. The question was not what journalist was I going to become, but what journalist was I at that moment. In this life, we learn about what we really believe not when things go well, but when they go wrong. I learned in that room that I would face jail rather than discuss confidential sources."

The three real-life situations, above, did not involve attorney-client privilege, for which attorneys in all U.S. States and in many countries have State Bar or Supreme Court obligations to protect. In some countries, like Ecuador for instance, it is a crime for a professional to divulge a client's confidential information, if that information could harm the client.

A question for any attorney is how courageous one must be in protecting the confidential information of a client's, or perhaps all of one's clients' confidential information in the case of a border warrantless laptop search. As courageous as a domestic violence counselor? a nurse? or a reporter? Or is there something in the obligation of an attorney that allows for handing over all the recorded communications on a laptop of all of one's clients to a border agent without a warrant? Or is there some middle ground?

Originally published by ABA Section of International Law, Issue 1, June 2018.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions