Responding to a U.S. border official’s request

Border Alert!

U.S. customs and border officials may now work in pre-clearance areas at Canadian airports and on the Canadian side of a border crossing as a result of recent changes in Canada / U.S. border procedures. Don’t assume that because you’re still on the Canadian side that you won’t be asked for access to your device by a U.S. official.

The best practice is to clean your device before you get to the airport, port, or border crossing.

When you have not done this, and you have client information on your device:

  • Identify yourself as a legal professional to the border official. Show your professional identification.
  • Explain that your device includes confidential client information. When it also includes documents covered by solicitor-client privilege, say so.  Describe how to identify protected documents. This will be easier to do when you have a system in place that segregates and labels them.
  • Ask the purpose of the search.
  • Appreciate that the border official may not know about border agency directives or about the special protections related to lawyers’ privileged communications with clients.
  • Consider what to do. When you don’t hand over your device, you may raise suspicions. When you do, everything on your device may be copied and analyzed.
  • Recognize when the situation is problematic and there is a serious risk of breaching your duty of confidentiality and compromising solicitor-client privilege. Ask to speak to the border official’s supervisor. Think about how you might bring the situation before a court so that a judge may decide how to proceed.
  • Contact your professional regulatory body practice advisor for advice.

Refusing to hand over your device and the password to open it may result in the border official refusing you entry into the U.S. Turning back and trying to cross at another location may result in more serious problems with border officials. They keep records.

NEXUS cardholders. You are a pre-approved, low-risk traveller who usually goes more quickly through the border process. However, you may still be asked for your device. Don’t assume because you have a NEXUS card, a border official will not ask you to hand over your device. Once a border official has reason to ask you to relinquish your NEXUS card, your application to get it back may be refused.