April 19, 2021
Things You Should Know! General Takeaways from ABA Webinar on Searches of Electronic Devices at the Border
I had the pleasure of attending the American Bar Associations webinar, “Privacy at Risk: Searches of Electronic Devices at Ports of Entry and Beyond”. Hosted by Sergio Karas, with thoughtful presentations by Beatriz Ballerini, Alexander Fischer and Brian Heller, this webinar provided a discussion of relevant considerations for counsel on potential searches of their materials at borders. Implications for client-solicitor privilege were canvassed in particular.
I thought I would write about the webinar to promote further conversation around the issue of client-solicitor privilege and the limits to legal rights around search and seizure at the border. My thoughts, observations and questions:
My takeaway was that the powers of both the US Customs and Border Protection and the Canada Border Services Agency to search electronic devices is wide; both agencies can move beyond a cursory search of devices on mere suspicion. Where suspicion exists, these authorities may also detain your device and download material from it, including material stored on the cloud. There have been some legal challenges to this wide authority in both Canada and the US. To date, the consensus of courts in both countries is that these searches are legally justifiable because protection of the border is fundamental.
Officers are allowed to do a cursory search.[1] A more advanced search may be undertaken in both countries where there is reasonable suspicion of an offence or of a threat to national security. During advanced searches, your electronics may be detained and information may be downloaded from devices. To avoid offending solicitor-client privilege, solicitors must either:
Not carry devices that contain any identifying information from clients (i.e: emails, documents, text messages, phone calls, etc); or
If asked to provide your device for a search, and it does contain client information, be ready to advise that you are a solicitor (and show identification confirming same), and to state that data you have on your device is privileged.
The search then should be stopped and the matter should be referred to a “supervisor”. The deeper search may still be completed after approval though. Solicitors should inform their client of this risk that electronic devices may be searched, in order to ensure that solicitors have received true “informed consent”. Solicitors should also consider encrypting all materials held on their electronic devices.
Following this presentation, our office had a quick discussion on the materials, raising several questions on the extension of solicitor-client privilege. It was asked whether solicitor-client privilege may also be asserted by staff of lawyers crossing the border, who may similarly have client information on their electronic devices. The Supreme Court of Canada clarified in R v. Neil (3 SCR 631) that the duty of confidentiality extends to a firm as a whole. According to the Canadian Bar Association, this suggests that the confidentiality obligations are “imputed to other members of your firm”.[2] While helpful, there remains the question of how this obligation may be asserted by staff at the border. Should all staff now be provided with identification of their affiliation with a firm (i.e. business cards) and instructed on how to assert confidentiality if stopped? Will this be a requirement of licensing boards, that staff be trained on these issues? If the individual is stopped, what will be the implications of the firm as a whole versus the implications where it is a solicitor being stopped?
By extension of the above, what level of privacy can clients expect when solicitors file confidential materials with the Federal Courts and a member of the Court (i.e: a judge or court staff) travels? Will solicitors be responsible for advising their clients of these potential challenges to confidentiality? Or is this the requirement of the court? And what measures of accountability are in place for clients to address where their information that is stored on the electronic devices of Court staff is accessed? Same questions could apply to the Immigration and Refugee Board, particularly the Refugee Protection Division since those hearings are in camera.
We are happy to see these conversations taking place, and excellent webinars and look forward to further engagement on the issue of privacy and searches of electronic devices.