Privilege at the border toolkit

  • May 13, 2019

Most of us are conscious of the image we present when we travel, making sure our faces and our clothes are clean and tidy. If you’re a lawyer crossing the border with an electronic device that might have privileged client information on it, don’t forget to give that a scrub as well.

“Clean your device before crossing the border” is the overriding message in a new CBA toolkit aimed at lawyers who travel, particularly to the U.S.

That’s because lawyers crossing the border with privileged information in their pocket can easily get caught in a Catch-22 – they could be viewed with suspicion if they don’t hand the device over, and risk breaching their duty of confidentiality if they do.

“U.S. customs and border protection officials have the legal authority to conduct a search of you and your property when you are seeking entry into the U.S.,” says the toolkit, prepared by the CBA’s Ethics Committee. “They do not need to have any suspicions or reasonable grounds to do so. Their broad powers allow them to ask for the password to your device or ask you to open it with voice recognition or fingerprint access.”

And once your device – which could mean your computer, tablet, cellphone, thumb drive, portable hard drive, tapes, camera or music player – is open, they can look at whatever’s on it, copy files, and analyze the data.

The toolkit offers up information on what you can do if border officials ask to see what’s on your phone. The best advice, repeated several times throughout the toolkit, is to not have anything on it.

“Officials … may only look at information that is on the device … (T)hey may not use the device to examine remotely stored information,” the toolkit advises.

If you’re planning to go out of the country with a device you use for work, upload all of your work files, client information, email and contact lists to the cloud, erase your browsing history, cache and cookies, and then delete everything by doing a factory reset. Put your device in airplane mode so that you can’t receive any email that might contain privileged information, and don’t take it off airplane mode until you’re across the border.

The toolkit, containing this advice and more, can be found on the resources page.