The Canadian Bar Association has launched an online resource for its 36,000 members to use to educate themselves about their technological devices when they’re crossing international borders. The CBA — whose members are primarily lawyers — said the information will help lawyers with “concrete information and practical suggestions about the steps they can take to maintain [solicitor-client] privilege.”
The launch comes after a lawyer told media his phone and laptop were seized at the border, and another lawyer said there hasn’t been clear guidance from the courts on the issue of unlocking a phone at an airport or a border.
“There are lawyers who are being stopped by the Canada Border Services Agency and U.S. Customs and they’re being asked to provide passwords so that the customs officials can review documents on their laptop,” says Cyndee Todgham Cherniak, founder of LexSage PC in Toronto and a customs lawyer. “Lawyers’ have an obligation to protect existing clients’ information and former clients’ information, and lawyers aren’t allowed under the Rules of Professional Conduct to allow the Canada Border Services Agency or other customs officials to look at the documents belonging to their clients.”
Todgham Cherniak is also a member-at-large of the CBA’s commodities tax, customs and trade section, and she has helped people who have run into issues at the border.
“I see the Canada Border Services Agency over-stepping their authority on a daily basis,” she says. Part of avoiding a potential problem means preparation in advance of travel.
The CBA says the “best way to protect confidentiality and solicitor-client privilege is to travel with a clean device, store sensitive information on the cloud and access this information remotely.”
“It is best to remove all client information from your device before getting to the airport, port or border. When files are stored on the cloud, make sure that everything has been uploaded and no forgotten files remain on the device,” says the resource, which was developed by the CBA’s ethics and professional responsibility committee. “Have a unique password to access your cloud-stored information. Consider using encryption software as added security.”
Lawyers who are travelling across international borders should review the rules, she says, but the advice is also useful for those who are travelling domestically and who might leave their laptop somewhere accidentally.
“It’s really directed at lawyers who travel either for business or for pleasure. . . . [A] lot of lawyers go down to Florida from time to time or on a trip somewhere with family, and they take their laptops with them and they take their iphones with them and they risk running into a problem,” she says.
Todgham Cherniak says she travels with a clean laptop, which is only used for travel. She says it only contains a few items related to what she’s working on for a client, and the documents are in a sub-folder labelled “solicitor-client privilege.”
“I don’t have client information on my laptop except for very specific documents for the purpose of that travel,” she says.