New U.S. border directive further undermines solicitor-client privilege

By Jacob Marchel February 8, 20188 February 2018

New U.S. border directive further undermines solicitor-client privilege

 

Better assurances and protections are needed for Canadian lawyers crossing the Canada-U.S. border.

Last month U.S. Customs and Border Protection issued a new directive for border searches of electronic devices. It outlines the extent to which U.S. CBP agents can inspect the phones, laptops, etc. of travellers crossing the border. The U.S. Department of Homeland Security justified the measures as necessary to combat crimes like terrorism, human smuggling, and child pornography.

More than just an inconvenience, the directive creates a serious problem for Canada’s lawyers, as it hinders their ability to preserve solicitor-client privilege.

The directive

Under the directive, agents can demand a passcode to open a traveller’s device without probable cause. Also, if agents consider it necessary, they can connect a device to a hard drive and copy its contents for further analysis. If the device cannot be accessed, agents can simply fill out a form, provide a receipt to the traveller, and detain the device for up to five days – with possible extensions.

Travellers can be present during a search, but they cannot see the screen. They must be notified of the search’s purpose, but there are exceptions to those rights (e.g. national security). Travellers can report their concerns about the search, which must be documented.  Regular audits are done to make sure agents are following the rules.

Handling of privileged and sensitive materials

The directive contains special conditions for the review and handling of privileged (and other sensitive) materials, but their ‘safeguards’ are concerning. 

Lawyers can claim privilege and specify that particular files as sensitive – in writing if possible. But that doesn’t necessarily prevent agents from viewing the files – they must first consult with CBP legal counsel, and the U.S. Attorney's Office, to determine which files should be “segregated” from the search.

Other sensitive materials – journalists' notes, medical records, proprietary business information – must be handled in accordance with other CBP policies and U.S. federal law. Copies of materials can still be made, only to be destroyed when found to be privileged, provided there is nothing indicating there is an imminent threat to homeland security. However, CBP legal counsel can still hold the information to comply with certain laws, including under a “litigation hold” — a term not explained in the directive.

Risks and liabilities for lawyers and clients

Maintaining solicitor-privilege is integral to public confidence in the administration of justice. The Supreme Court of Canada stated that for it to be meaningful, it must remain as close to absolute as possible.

A border search wouldn’t typically meet the high threshold for permitting disclosure of these materials. Also, it’s not up to a lawyer to waive clients’ right to privilege.  Without a client’s prior consent, lawyers subject to a search may find themselves choosing between potentially violating solicitor-client privilege, being refused entry to the U.S., or having themselves or their devices detained at the border. All of these options put the effective representation of clients in jeopardy.

If the information on a lawyer’s device is retained, there are few assurances as to how that information might be used. There is no absolute way of knowing, at the time a device is surrendered, how information accessed by an agent will be shared and for how long.

This directive also appears as Canada is about to legalize personal cannabis use, and allow private companies to cultivate and sell it for recreational use.

The U.S. Attorney General, Jeff Sessions, recently rescinded Obama administration policies that adopted a non-interference policy with ‘marijuana-friendly’ state laws, causing conflicts as cultivation, possession, and sale of cannabis for recreational use is still illegal under U.S. federal laws, in contrast to some state laws.

If a Canadian lawyer representing a legal cannabis company comes into the U.S. to provide legal advice on a business matter, how would the CBP be expected to handle any information about that company accessible on the lawyer’s devices?  Would the CBP acknowledge privilege and destroy any information, or arrest the lawyer for violating U.S. federal law? These concerns extend to many other areas of law and business.

The Canadian response

The Canadian government has stated that travellers should have limited expectations of privacy during border searches conducted by customs officers. In contrast to the U.S. directive, Canada’s Customs Act has no specific authorization to access privileged information (with the exception of the general search provision under s. 99(1)(a)), and provides no mechanism to protect privilege.

This issue is magnified by concerns with bills such as Bill C-23, Preclearance Act 2016 (currently under consultation), which would further expand the powers of border officers to search, interrogate, and detain people at the Canada border.

Some Canadian lawyers are challenging this position. Currently, only B.C.’s Law Society has officially questioned Canada’s border policies, and to date, no law society has explicitly addressed the concerns resulting from similar policies in the United States.

The Canadian Bar Association has also stated its position on the issue, first publishing some practical advice to lawyers for securing devices before crossing the border in 2008, then releasing a comprehensive report in 2017, and later voicing its concerns with Bill C-23 before the Senate Security and National Defence Committee.

Regardless of the measures lawyers may take – from traveling with no physical paperwork to using only dummy electronics and burner cellphones – these seriously limit the way lawyers work so as not to risk U.S. border agents gaining access to privileged information.

Canadian law societies should release official statements clearly outlining how they interpret, and to what degree they support or disagree with, these Canadian and U.S. policies -- including the new U.S. Directive. Moreover, law societies and professional legal insurance providers need to provide clear direction confirming that lawyers who assert privilege, but still have their devices inspected, remain insured, are not in violation of their professional and legal obligations to their clients, nor will they be found guilty of professional misconduct as a result.

They should also urge the Canadian government to consult with the U.S. CBP to coordinate a uniform, bilateral approach, to safeguard privileged electronic information at border crossings between Canada and the U.S.

With border inspections of electronic devices growing, the potential for the erosion of solicitor-client privilege is real. Additional guidance and new legislative enactments are needed. Otherwise, the vital technologies lawyers rely on to do their work may put in jeopardy the “close to absolute” protections that robust solicitor-client privilege demands.

Jacob Marchel is an Associate Lawyer with Meadows Law, located in Edmonton, Alberta. His work focuses on environmental, aboriginal/indigenous, and administrative law, with a developing practice in renewable energy. The author's views are his own.

An unabridged version of this article is available here: full version.

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