Law Times

Law Times • augusT 6, 2018 Page 9 www.lawtimesnews.com Privacy of documents at border under question BY MEAGAN GILLMORE For Law Times R ecent guidelines about searches of electronic devices at Canadian and U.S. borders have rein- forced lawyers' need to protect privileged information on their digital devices when crossing the border. In July, the Office of the Pri- vacy Commissioner of Canada released an updated notice about how Canadians can protect their privacy at the border. U.S. Customs and Border Protec- tion published a new directive in January outlining how and when U.S. officials can search electronic devices at the border. Both documents mention the importance of maintaining solicitor-client privilege. Using separate devices for travel may be a good idea, but it might not always be practi- cal, says Allan Oziel, founder of Oziel Law, a business and tech- nology firm in Toronto. It can be expensive, he says, and could hamper a lawyer's ability to do work. "There is that balance as a lawyer that you're going to have to take between the practicality and the protection," says Oziel. "There are ways that you can protect your client information in more extreme ways. But when you take those more extreme measures, it's not practical." Oziel says lawyers need to limit the information present on their devices and store sen- sitive information securely on the cloud. But more extreme protection methods could make officials suspicious and trigger advanced searches, he says. Lawyers may choose to use two-factor authentication meth- ods for passcode-protected information, he says. In this method, data is protected by two passcodes. The second passcode is temporary and sent to another device. Lawyers could have the SIM card associated with the number the second passcode will be sent to shipped to their destination, he says. This means the temporary passcode won't be "on your phone at the time of the search, and you'll only be able to log in when you get to your destina- tion," Oziel says. But, he cautions, this could raise officials' suspicions and trigger a more detailed search. "Unless you can really justify those really extreme methods, like having burner devices," he says, "I think it might be seen as extreme and may be seen as less practical." Maintaining solicitor-client privilege on electronic docu- ments when crossing the border isn't a new concern, says Molly Reynolds, whose practice at To- rys LLP in Toronto focuses on privacy protection. Smartphones, tablets and laptops are the "lifeline" of com- munication now, she says, with one device potentially providing information about many clients. "A single search of a lawyer's phone could result in effects for dozens or hundreds of clients depending on how much infor- mation is on the device," says Reynolds. Decreased privacy rights at the border and other custom- controlled areas increase these concerns, says Reynolds. Lawyers should also have a plan for what to do if their devic- es are searched, says Reynolds. If physical or electronic documents are searched, "it is really impor- tant to tell every official who you meet within that process that you are a lawyer and you are travelling with privileged infor- mation that you're not allowed to disclose," she says. Lawyers should be able to clearly explain the reasons for their trip while maintaining confidentiality, says Reynolds. "It's difficult for lawyers be- cause we can't disclose privi- leged information for the pur- poses of what we're doing [in the country where we're travelling]," she says. If a client's identity is privi- leged, Reynolds says, it can be wise to provide the name of a third party who can confirm the meeting and to tell the client you plan to do this. Cyndee Todgham Cherniak, founder of LexSage, an interna- tional trade and sales tax firm in Toronto, says the best way is to travel with a "clean" laptop that doesn't have access to webmail, work databases or documents saved on it. She has a separate laptop she uses for travel, she says. It doesn't have access to her work databases or webmail or her social media and banking accounts. Understanding how to keep information secure at the border is especially important because not all the policies about it are public, she says. The CBSA does not publish its policies about searching elec- tronic devices or maintaining solicitor-client privilege, says Todgham Cherniak, who has posted internal policies she ob- tained on her website. The pol- icy about protecting solicitor- client privilege is only two pages and is meant to "remind Border Services Officers to treat docu- ments, electronic or otherwise, which are protected by solicitor/ client privilege with sensitivity," the CBSA's policy says. The pol- icy describes what documents can be claimed as having privi- leged information and what bor- der officials are to do when they encounter them. There needs to be "a robust policy that is written, publicly available, transparent and acces- sible," says Todgham Cherniak. A more robust, public policy could help lawyers better plan for potential security risks when they travel, she says, and keep border officials accountable. "[Solicitor-client privilege] is a cornerstone of the legal system in Canada. It should be respect- ed by lawyers and by officers of the CBSA," she says. LT FOCUS Allan Oziel says using separate devices for travel may be a good idea, but it might not always be practical. 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