This Div is a JS Trigger
Issue 49 | January 2018

LIANSWERS

This newsletter includes information to help lawyers reduce the likelihood of being sued for malpractice. The material presented is not intended to establish, report, or create the standard of care for lawyers. The articles do not represent a complete analysis of the topics presented, and readers should conduct their own appropriate legal research.
Crossing the line: Privileged information at foreign borders

Travel to foreign countries, be it personal or business, is a common occurrence. As has always been the case, prior to entry you can be subject to questions and a search. In today’s world, a search extends to the ability of a border agent to examine any electronic device, be it a phone, tablet or a laptop, that a traveler may be carrying.

And in the case of personal travel, it is not uncommon to carry a work phone or computer.

For lawyers, this search is particularly problematic because of issues of privilege.

As most Canadian travel is to the United States, the following link is to the current U.S. border policy on searching electronic devices: https://www.cbp.gov/sites/default/files/assets/documents/2018-Jan/CBP-Directive-3340-049A-Border-Search-of-Electronic-Media-Compliant.pdf. Pursuant to the policy, you can be asked for your password to open your device. Though files generally cannot be downloaded during a search, documents on the device can be examined.

Because the risk of a search of an electronic device always exists, steps can be taken to reduce (though not eliminate) the risk of inadvertently giving access to privileged information. These steps include:

  1. having the device(s) in airplane mode before you reach the border to prevent access to your firm’s system and any cloud storage if the device is searched;
  2. consider deleting client information from the device or transferring it to the cloud so that if the device is in airplane mode, the information cannot be accessed from the device. Perhaps law firms should arrange for a cell phone specifically for travelling lawyers that the lawyer can forward their calls to but has no files, or access to files, on it;
  3. if you have to take files and documents, use paper or perhaps put what you need on a USB stick that is properly encrypted.

In the worst case scenario, you should be prepared to turn your device over if the border agent demands it. If such a demand is made, you have to consider the risk of refusing the request. In the case of travelling to the U.S., though U.S. citizens cannot be stopped from entering the U.S., a non-citizen can be turned away at the border if the agent so decides. If your device is detained, the detention period, without seeking further approval is up to five days which may be a problem if you are travelling for a one-day meeting.

Certainly none of these solutions can completely eliminate all risk of inadvertent disclosure of privileged information if a search of a device is made. As this is a developing issue, if it is necessary to take an electronic device that you use for business on your travels, attempts should be made to at least reduce the risk of disclosure.

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