In 2015, Alain Philippon went on a trip to the Dominican Republic. When he returned to Canada, he was asked to provide his BlackBerry to Canadian Border Services Agency (CBSA) officers for examination. Philippon handed over his device but refused to provide the password. As a result, he was arrested and charged for hindering a border services officer. Philippon ultimately pleaded guilty to the charges in 2016 and agreed to pay a $500 fine. His BlackBerry had been in the CBSA’s possession for over a year pending the resolution of the charges.
Some say that today, a person’s smartphone is his or her castle. If that is so, for lawyers carrying privileged information on their device, it must be a fortress. As lawyers, we must respect domestic and foreign laws, our ethical obligations and our clients’ interests while crossing borders. To do so, we need to take steps in advance to reduce the amount of confidential information carried across borders, prepare responses to routine and unusual questions by customs officers, and understand the potential consequences of protecting our clients’ rights. This article provides some suggestions for lawyers crossing international borders.
Client Confidentiality Obligations
Lawyers in all provinces and territories have strict obligations of confidentiality. In Ontario, rule 3.3-1 of the Rules of Professional Conduct states one of our profession’s most sacrosanct duties:
A lawyer at all times shall hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship and shall not divulge any such information unless
- expressly or impliedly authorized by the client;
- required by law or by order of a tribunal of competent jurisdiction to do so;
- required to provide the information by the Law Society; or
- otherwise permitted by rules 3.3-2 to 3.3-6.
This rule is even broader than the constitutionally protected right to solicitor-client privilege. Rule. 3.3-1.1 further clarifies that even when the disclosure of confidential client information is required by law, a lawyer may not disclose more information than is required to comply with the law. Therefore, even where the Customs Act or other domestic or foreign laws authorize a border security officer to request, seize or inspect a traveller’s files or devices, a lawyer must still be vigilant to protect confidential information against disclosure.
Dos and Don’ts of Crossing the Border
To handle turbulence at the border, here are a few tips:
DO determine whether your business travel could require a visa
When traveling to the US, Canadian visitors are permitted to perform business activities on behalf of their Canadian firm, provided:
- they do not engage in any activity that would constitute local employment within the US;
- the business activity is directly connected with the work in Canada; and
- no compensation is provided from a US source.
Be prepared to explain (and prove) the purpose of your visit and its connection to your Canadian practice, without divulging unnecessary client information.
DON’T rely on your device to answer questions about your travel.
“Business or pleasure?” If you need to call up an email or calendar invitation on your smartphone or tablet to substantiate your answer to that question, you could be putting client information and your devices at risk. Keep your devices locked and out of sight when answering customs questions. Instead, have a supply of business cards and a printed itinerary on hand to prove where you are going and how long you are staying. If you refer border agents to an online professional profile to prove your status as a lawyer, don’t offer to pull it up for them on your phone.
Need another incentive to go the paper route? Alain Philippon’s phone was held by CBSA for over a year. Talk about a #latergram.
DO know what information your client is comfortable sharing
Discuss with your client prior to departure exactly what he or she is willing to have you disclose if pressed at the border. Can you share the name of the client you are visiting or on whose behalf you are travelling? Can you explain why the case or the client’s business requires you to travel internationally? Where there is particular sensitivity about a deal or even the client’s identity, these discussions may lead to alternative options, such as video-conferences or the use of local counsel for limited purposes.
DON’T travel with too much information
Whether in your briefcase or on your device, the less information you have, the better. CBSA officers may copy documents in your luggage or information stored on your device’s hard drive and may not consider your claims of privilege and confidentiality when performing this collection.
Traveling with clean devices better protects your clients’ and your firm’s confidential information. Wipe your laptop, phone and tablet before traveling. Don’t bring client files on a portable storage device such as a USB key. Use remote access connections to connect to your office files once you arrive at your destination, or delete cloud-based storage apps and reinstall them when it’s safe to get back to work.
DO assert privilege but DON’T escalate the situation
In the event you are asked to provide passwords to devices that contain privileged information, you may politely resist. Explain you are a lawyer, that you have client information on your device, and that providing access would constitute a breach of your professional obligations. You may ask to contact a lawyer, but you do not have a right to counsel in all ports of entry. Consider keeping a paper note of an immigration lawyer in your departure and destination cities whom you could contact if detained.
If border service officers insist on accessing your device and obtaining your password, you may ask to withdraw your request to enter the country and return home. In some countries, and under proposed legislation in Canada, border officials may still have the right to question you after you withdraw your request to enter. Be clear about your objections and your requests, but don’t be belligerent.
Some of these tips can be time consuming, inconvenient or intimidating. But where privileged information is at risk, the consequences of unnecessary disclosure can be serious for both the client and the lawyer. Where the burden of minimizing confidentiality risks seems too onerous, consider alternatives. Do you need to go in person? Can your materials be downloaded or printed after you arrive? Above all though, don’t head to the airport in blissful ignorance on the assumption that this won’t happen to you.
Want to Learn More?
For more tips on cross-border travel, transactions and regulatory enforcement, be sure to register for the OBA’s half-day program on Privacy Across Borders on October 11, 2017. Co-presented by the Information Technology and Intellectual Property Law, and Privacy and Access to Information Law sections, the session will cover international transactions, transfers of information and law enforcement for Canadian lawyers, with a focus on the U.S. and European legal regimes, as well as further advice on protecting client information when crossing the border.
Registration for this program is coming soon, and will be sure to fill up quickly. Look for an OBA email or tweet soon with registration details and hold October 11 in your calendar in the meantime.
In addition, the House of Commons’ Standing Committee on Access to Information, Privacy and Ethics is conducting a study of the privacy of Canadians at airports, borders and when travelling in the U.S. and has already sought comment from Canadian and American civil liberties advocates. OBA members who wish to comment on this issue may contact the CBA Immigration Law or Privacy and Access Law Section chairs for more information.
About the authors
Molly M. Reynolds is a senior associate at Torys LLP, where her practice is focused on privacy litigation, anti-spam and e-discovery.
Emma Loignon-Giroux is a student of McGill University's Faculty of Law and is a 2017 summer student at Torys LLP's Toronto office.