What Canadian Lawyers Should
Know About Solicitor-Client
Privilege At The Canada-US Border

February 3, 2017

There are reports that President Trump is considering an Executive Order to require the Department of Homeland Security, and in particular U.S. Customs and Border Protection (USCBP), to ask foreign visitors to provide information about their social media profiles and access to their computer contact lists.  This would include Canadian lawyers. The access to contact lists is something that should concern Canadian lawyers because our clients’ names, contact names, telephone numbers, fax numbers, addresses, and email addresses are in our contacts on our computers and smartphones.  Lawyers in Ontario are required by the Law Society of Upper Canada’s Rules of Professional Conduct to keep the names of clients confidential.

While the United States Department of Homeland Security has a written policy on Border Searches of Electronic Devices, foreign lawyers do not receive the same treatment as U.S. lawyers.  As a result, Canadian lawyers currently can have their laptops searched, including client files and Outlook (including emailed correspondence, emails and contact lists). In fact, a lawyer’s entire hard drive can be downloaded and copied by USCBP and there is no way of knowing what is done with the copy of the hard drive.  USCBP can seize laptops and smart phones (and other electronic devices) from Canadian lawyers.

Now for Canada, the Canada Border Services Agency (“CBSA”) does not have a written policy.  On June 19, 2014, the Canadian Bar Association wrote to the Minister of Justice and the Minister of Public Safety and Emergency Preparedness to seek support in establishing a working group to develop a policy for border searches of lawyer’s laptops and other electronic devices.  This letter was written after the Canadian Bar Association passed Resolution 13-06-A “Solicitor-Client Privilege Claims at the Canadian Border“.   To date, no such discussion has commenced and no working group has been assembled.

What this means is that currently, the CBSA has legal authority to search any electronic device of a Canadian lawyer (and foreign lawyers).  There is no policy that a lawyer can site to the CBSA. A lawyer can ask for a CBSA officer to call his supervisor, but if the supervisor supports the search, there is little that a lawyer can do at that moment in time (at the border in the secondary inspection area).

Recommendations

  1. Law firms should adopt a travel policy for all lawyers who travel with electronic devices (that would be everyone) that considers the limitations at the border relating to the protection of client information.
  2. Lawyers should travel with a clean travel laptop dedicated for travel that (a) does not have Outlook (or another email program) and (b) does not have all the lawyer’s client files stored on the hard drive.
  3. Lawyers should have a travel smart phone that does not have contact lists and ensure all email accounts are removed prior to the border crossing (emails can be downloaded).  It is easy to swap a SIM card or forward calls to your travel phone.
  4. Lawyers should have a personal secure wifi device so that emails can be downloaded while traveling. Hotel and cafe wifi systems are generally not secure and the emails can be intercepted.
  5. Lawyers should remove all extra USB keys from briefcases and backpacks prior to travel.
  6. Lawyers should only travel with necessary documents – do not go on vacation with client documents.
  7. Lawyers should use encryption software for very sensitive client documents that they must travel with.  While USCBP and the CBSA have sophisticated programs and may be able to access the documents, encryption software is a due diligence tool to protect client information in any event.
  8. Lawyers should claim solicitor-client privilege at the border and ask for the border officer to make arrangements for the issue to be put before a judge.  The border agency’s lawyers would have to present arguments to the judge as to what information is to be examined and maybe the judge will restrict the review.  However, this is not guaranteed in Canadian or US border procedures for Canadian lawyers at this time.  There is little harm in asking – there could be significant long term problems for the lawyer if the request is rejected and the dispute escalates.
  9. Always be aware that the CBSA Officers and USCBP Officers have wide discretion.  Keep calm and logical and rational.  As soon as behaviour crosses a line, it is difficult to de-escalate and cause a border officer to change his/her mind.  Also, you do not want to be charged with obstruction of an officer in performing his/her duties.

More information about searches at the border is contained in a PowerPoint “Hot Topics in Privilege: New Things To Think About!” (April 2015).  See also “On What Authority Does the CBSA Search Smart Phones?” (October 26, 2016).  See also “What Should A Lawyer Do To Claim Solicitor-Client Privilege at the Canadian Border?” (August 19, 2015)

For more information, please contact Cyndee Todgham Cherniak at 416-307-4168 or by email at cyndee@lexsage.com.

*LexSage Professional Corporation is approved by the Law Society of Upper Canada