The Federation of Law Societies of Canada has published a reference document for the legal profession dealing with the risks of travelling internationally with an electronic device. You can download the document, Crossing the Border with Electronic Devices: What Canadian Legal Professionals Should Know. This document can be shared directly by law societies with their members; similarly, its contents can be used by law societies in advising their members in regard to practice-specific questions and concerns.
The document, developed by the Policy Counsel Counterpart Group of the Federation with the assistance of law society practice advisors, describes the risks of travelling with an electronic device when returning to Canada, going through pre-clearance with U.S. border officials on Canadian soil, and when travelling to the U.S. and beyond. The Policy Counsel Counterpart Group brings together policy counsel from law societies across the country.
The document identifies how relevant professional responsibilities may be compromised by border searches of electronic devices, and concludes with 15 recommendations on how Canadian lawyers and Quebec notaries can minimize those risks.
According to the publication, Canadian lawyers and Quebec notaries travelling internationally with electronic devices face increasing uncertainty about how those electronic devices will be treated by border agents on apprehension by Canadian Border Security Agency (“CBSA”) officers on return to Canada, by border agents in the U.S., or by border agents in other international destinations. Border agents’ searches of electronic devices (including smart phones, laptops, and USB sticks) of a legal professional may infringe solicitor-client privilege depending on what is accessed by those border agents.
With travellers at Canadian airports and border crossings subject to increasing scrutiny, it is important for lawyers and Quebec notaries to understand how the privacy and confidentiality interests of their clients may be impacted by legislation and policies developed to address public safety issues. The document notes that legal counsel should also understand that their profession does not exempt them from policies and processes allowing for access to information that otherwise would be subject to solicitor-client privilege.
The document concludes with practical guidance for the legal profession when travelling internationally with electronic devices. Among the 15 recommendations: lawyers and Quebec notaries consider bringing less data with them when travelling internationally. If a cloud-based storage provider is used, the legal professional can delete cloud-based applications before crossing the border and reinstall them at their destination. Client contact and calendar information can similarly be deleted from smartphones and subsequently restored through internet services. .
Another recommendation is that when returning to Canada, lawyers can put their device on airplane mode to stop information from transmitting, and turn it off before approaching the border. When the device is turned on again, it will still be in airplane mode and no new information will have been transmitted. According to Canadian Border Services Agency Operational Bulletin: PRG – 2015 -31, CBSA and CBP officers are authorised to only look at information that is on the device, not use the device to access information that is in the cloud.