A lawyer and his smart phone—that inseparable couple— create unique privilege issues when they cross an international border. Border agents may demand to search your phone, including emails protected by the attorney–client privilege.
Several articles over the last several months, including this one from the ABA and this one from The New York Times, discuss U.S. Customs and Border Protection (CPB) agents’ authority to search a lawyer’s phone when she crosses the border. The CPB has a policy directive, available here, that governs the search of a lawyer’s phone when the lawyer raises the privilege issue. And the New York City Bar Association issued an ethics opinion, available here, instructing lawyers how to handle U.S. border agents’ inspection of lawyers’ smart phones.
But what about policies and laws when lawyers cross the Canadian border? May the Canadian Border Services Agency demand to search your privilege-laden phone? Are there strategies, technologies, and other practice tips for handling search demands? Will the CBSA care about Canada’s solicitor–client privilege?
I don’t have the answer, but fortunately Toronto lawyers Nader R. Hasan and Gerald Chan do. In their article, Flying With Your Cell Phone? Here’s What You Need to Know, Hasan and Chan identify the issues and offer practical tips for protecting privileged information when crossing the Canadian border. You may read the article here.