New U.S. policy a matter of considerable concern

A newly announced policy of the United States Department of Homeland Security presents a significant threat to the solicitor-client confidentiality to which Canadians are entitled.
The threat arises when a Canadian lawyer travels to the United States with his or her laptop computer, cellphone, BlackBerry, flash drive, or any other written or recorded information or client files - even if the lawyer is only on holiday. The same threat occurs when a client travels across the border in possession of similar communications to or from his or her lawyer.

Last month, Homeland Security announced that its border agents have the right to seize and hold travellers’ electronic devices and paper files indefinitely, and make copies of them at another location.
The policy can be found at: http://www.cbp.gov/linkhandler/cgov/travel/admissability/search_authority.ct/search_authority.pdf.

This policy is a matter of considerable concern to Canadian lawyers who travel to the U.S. with their computers and other digital devices, whether on business or on holiday. 

My electronic companions are full of privileged client information, which neither my clients nor I would care to share with U.S. border agents - even though none of the information relates to a violation of any Canadian or American laws.

The stated purpose of the U.S. policy is to combat terrorism, narcotics smuggling, national security matters, alien admissibility, child pornography, money laundering, copyright or trademark violations, or breaches of U.S. trade embargo laws.

The policy allows border searches “absent individualized suspicion.” In other words, without any evidence that the lawyer or his clients are breaking U.S. law.

If a lawyer or a client being subjected to a border search claims solicitor-client privilege, the legal materials “may be subject to special handling procedures,” the policy says, although they are “not necessarily exempt from a border search.”

If a border officer suspects that the content of a document or electronic data for which client privilege has been claimed constitutes evidence of a crime, he or she must seek advice from a U.S. attorney’s office before conducting the search.

There is no time limit on that consultation or on the return of the documents, files or electronic devices to the lawyer or client involved in the search.

This draconian U.S. policy is in sharp contrast to the protections afforded to lawyer-client communications on this side of the U.S. border.

When a client visits a lawyer in Canada, he or she is entitled to a near-absolute expectation of privacy for the contents of the lawyer’s file and the communications between a lawyer and the client. Only the law society can examine the client’s file, if necessary for regulatory purposes, and even then it is bound by the same confidentiality as the lawyer is.

The client’s file may also be examined by order of a judge in a civil or criminal matter.

Access to the file by police officers exercising a search warrant in criminal matters is also restricted. Back in 2002, the Supreme Court of Canada established a set of rules to govern police use of search warrants in law offices.

Under the court guidelines, no search warrant can be issued for documents that are known to be protected by solicitor-client privilege. If a search warrant is issued, it must be in a case where there is no other reasonable alternative to the search.

The documents are sealed before being removed from the law office, and then brought before a justice of the peace to determine whether they are privileged. At that stage, the lawyer, the client, the law society and the attorney general may make submissions to the court. If the papers are found to be protected by privilege, they must be returned.

The next time I travel to the United States with my laptop or BlackBerry, I’m going to make sure sensitive client e-mails and documents have been purged from their electronic memories. Or I will leave sensitive documents and e-mails at the office, to be retrieved remotely on demand.

My intuition tells me that the contents of my laptop and BlackBerry are better shielded from prying government eyes when I take it to communist Cuba than when I drive across the border to Buffalo.

Bob Aaron is a Toronto real estate lawyer and Law Society of Upper Canada bencher. He can be reached at [email protected].

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