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Leave your privilege at home

Some practical advice for lawyers crossing the border.

Airport worker exploring x-ray of baggage

The seizure of a Toronto lawyer's phone and laptop containing privileged information in early May caused an outcry over privacy concerns at the Canadian border.

Nick Wright, a Toronto business lawyer who was travelling home from a trip to Guatemala and Colombia, described the confiscation of his devices by Canadian border officials as "outrageous."

But experts say that to avoid giving up privileged information to border officials, lawyers should be prepared when crossing the border.

(Check out the new Border Alert Toolkit for tips on what to do when carrying electronic devices across borders to protect privilege.)

Mark Pontin, a partner with Fasken Martineau DuMoulin LLP, says that lawyers should be aware that border security officers have the right to search and potentially seize your belongings at the border.

"It has become a bigger issue with electronic devices because they have the right, under their own policies, to demand passwords," he says. "In the context of that, a lawyer could end up in a search where potentially privileged documents can be disclosed."

If your cellphone or laptop is seized or imaged – when data on your device is copied by border officials – "you have lost control of those documents, and potentially you have given up your client's private, solicitor-client privileged documents," says Pontin.

He has the following advice for lawyers crossing the border:

Keep your laptop clean

"If you don't need to cross the border with privileged documents, then you shouldn't," recommends Pontin.

He says that lawyers should try to avoid this situation whenever possible. 

"You shouldn't just be loading up your laptop and taking it to the U.S. or elsewhere without thinking: 'Do I have stuff on this computer that is privileged and do I need it for my travels?'  "says Pontin. "If you don't, you should be removing it."

He recommends that lawyers use remote access to work on their files while out of the country.

Lawyers should also consider using separate devices for their law practice and for personal use, he says. "That way you can have a clear delineation: that laptop has privileged information on it and that one doesn't."

If you work for a company or a law firm that has "loaner laptops" for travelling lawyers, they will need to be "clean and scrubbed" of privileged documents between uses, adds Pontin.

Identify yourself and your documents

If you do have to travel with privileged documents, Pontin recommends that you carry identification showing that you are a lawyer.

"That way you can show border security officers that you have a base to say that there is going to be privileged documents on your computer or your smartphone," he says.

Pontin also advises that those documents should be clearly marked as privileged information.

"If you have them on your computer, you should have them separate from everything else that is not privileged so it's easier to make a claim of privilege," says Pontin.

"Both U.S. and Canadian border officers have policies that state that they must handle solicitor-client privileged documents with some sensitivity," he adds. "If you get into a search situation and they start asking for your device and your password, you should be speaking up early, right away, and asserting a claim of privilege over the documents on your phone or laptop."

However, Pontin cautions that this may not prevent a border security official from seizing your device or reading privileged information.

"A lot of this is left up to the discretion of the particular border security officer that you are dealing with and whether or not they think that a clear case of solicitor-client privilege is being made out," he says. "That is really the issue. It's their power of search and seizure at the border running up against or conflicting with your obligations as a lawyer to protect your client's confidences."

Delete your email app

Pontin says that information technology experts have recommended to him that lawyers delete the icon to their email app before crossing the border and put their phones on airplane mode.

"That way you're not receiving any emails when you are crossing the border, and there is not an icon to prompt them to search your emails," he says.

It would be "very unlikely," Pontin adds, that border security policies would allow the officers to request that you download an email program onto your device to enable them to search your emails.

"But if it's there when they're searching your phone, they could look at your emails because it is right there," he says.

Once you have arrived at your destination, you can restore the program that you use for emails and take your phone off of airplane mode, he recommends.

Be careful when sending documents across borders

Pontin also cautions lawyer to be mindful of solicitor-client privilege issues when dealing with foreign counsel.

"The thing to remember is when you are dealing with foreign counsel or dealing with documents in a foreign place, or you're sending them to a foreign country, it's going to be the laws of the land there that govern what privilege applies," he says. "If there is a challenge to privileged documents in the U.S. or somewhere else around the world, it's going to be an issue as to whether or not Canadian law around privilege even applies. And that's a big issue."

There are significant differences in the way that privilege is dealt with in different jurisdictions, says Pontin.

"Here in Canada if you come into possession of documents that are clearly privileged and you believe that they were inadvertently disclosed, as counsel you have the obligation to return them unread," says Pontin.

In some jurisdictions, however, you would have an obligation to your client to use those documents to your advantage, overriding the obligation to return the documents.

"When you are dealing in a foreign country you have to realize there is going to be different ways of dealing with privileged documents," says Pontin, emphasizing the importance of solicitor-client privilege as the "fundamental cornerstone of how the lawyer-client relationship works."

For more on dealing with privilege on the border, see the CBA’s 2017 submission Privacy of Canadians at Borders and Airports and the CBA Influence blog Privacy at the border: Is the smartphone more like a letter or a briefcase?