Border Searches of Electronic Devices

Reports of Canadian travellers having their electronic devices searched at the United States border is increasing.  As I have often advised clients, border protection agencies, such the United States Border Service and the Canada Border Service Agency (CBSA) have wide discretion as to whether a traveller is permitted entry into the country they protect. While I am not an immigration lawyer and therefore cannot offer any legal advice for immigration or border issues, as a criminal defence lawyer in Alberta it is not uncommon for clients to raise concerns about the impact of a criminal charge on their ability to travel across International Borders. 

What is transpiring at the Canada-USA border is now not only a concern for people travelling with criminal records or even with police records, it is now a concern for all law abiding travellers who wish to keep information on their electronic devices private.

Border Searches of Electronic Devices

According to the CBC:

From April to June alone, CBP conducted 14,899 electronic device searches, up more than 21 per cent from the previous quarter (23 per cent over the same period last year). Most of those were basic searches, but 1,075 were "advanced," allowing officers to copy and analyze device contents.

While electronic device searches jumped by 12.6 per cent over the past year, the total number of travellers entering the United States rose by 6.6 per cent. Among the most notable increases are searches of U.S. citizens' devices, which rose nearly 22 per cent.

https://www.cbc.ca/news/canada/windsor/us-canada-device-searches-1.7619944

Setting aside my curiosity about the increase in travellers entering the United States – a statistic potentially illustrating the hypocrisy of the “elbows-up” crowd – I am nevertheless concerned about the increase in both basic discretionary electronic device searches and “advanced” searches where border officers “copy and analyze device contents”.   My concern is grounded in both the impact of traveller privacy as well as the impact on lawyers travelling to the United States.

Privacy in Device Data

With respect to the impact on traveller privacy, my concern is not grounded in the idea that travellers are necessarily hiding nefarious data – for most are not; rather, my concern is that in an age where most of us literally carry jam packed filing cabinets of information about ourselves in our cellphone and other electronic devices – some of which may be legally intimate – the notion that our information is being inspected and potentially copied by third-party agents is troubling.  By way of example, an ordinary person might have information about his or her prescription medications and banking on an electronic device. That same person might have silly, private and intimate conversations with his or her partner contained in a text string on a cellphone. I am quite positive that when Border Services agents inspect a cellphone, they immediately peruse text messages and other electronic communications.

Caution when Travelling

With all of this in mind, all people should be cautious when travelling outside the Country; for border guards have vast discretionary power when deciding whether a traveller is admissible to the country or not.

As reported by the CBC:

Cybersecurity expert Ritesh Kotak said he's often asked how travellers can protect their data at the border.

"You could use a burner phone," he said. "But at the end of the day, the lack of information on the device itself would be a red flag."

Sociologist Nathan Kalman-Lamb, based in Fredericton, said he was required to hand over his phone during a recent trip to a conference in South Carolina.

"He claimed that it was just going to be a very cursory search," Kalman-Lamb said, explaining the officer's actions are legal.

"But the document that he gave me said they reserve the right to copy all the contents of your phone and distribute them to every American military and intelligence agency."

Lawyer Travel and Solicitor-Client Privilege

This is not only an issue for ordinary travellers. Protocols at the United States Border are particularly concerning for lawyers.

As a lawyer who travels, it has hitherto not been unusual for me to travel with my laptop and cellphone so that I can do work and monitor clients while away from the office. Of course, every client file on my laptop along with every client communication and reference in my smartphone is subject to “solicitor-client privilege”. 

The principle underscoring solicitor-client privilege is that it protects confidential communications between a lawyer and their client. The purpose for this protection is so that clients are encouraged to engage in open and honest communications with their lawyer.  Solicitor-client privilege belongs to the client and therefore, cannot be waived without the express consent of the client.

Now, imagine the predicament for any lawyer crossing the United States Border who is subject to a discretionary search of his or her electronic devices? If that lawyer is carrying client information, he or she cannot consent to the search. If that lawyer consents to the search, not only is there is a potential violation of solicitor-client privilege but there is a possible transference of client data to the American military and intelligence service.  Imagine the field day that intelligence services and State agents could have with sensitive client materials – especially those relating to person’s accused of crime?

Now, to be clear, lawyers travelling for work purposes carrying client files intended to be worked on whilst on vacation or carried for actual business occurring abroad have always been at risk of search. However, the likelihood of a search was so negligible that lawyers have been prepared to simply abandon their travel plans if the issue arose. However, according to the CBC, discretionary searches of electronic devices has increased by greater than 23% over the year – not an insignificant amount.

With all of this in mind, this Calgary criminal lawyer is of the view that lawyers can no longer travel with any client information whatsoever. That means that we must carry a specific mobile device for travel purposes only. The problem with this is that lawyers can no longer take work vacations and when they take an actual holiday, they cannot really equip themselves to manage clients while abroad. This is unfortunate because as any lawyer is well aware, it is not unusual for issues to explode unexpectedly.

The Solution

So, what is the solution?

I suppose one answer is that lawyers with active clients should not travel or should only do so with the understanding that while away, they can offer only limited services.

Perhaps lawyers can carry empty devices that connect to servers where client files are stored in the jurisdiction where the lawyer operates?  If that is the case, I suggest that the lawyer should ensure that all login information is stored in the creases of memory; for if it is not, and is found by border agents, it is possible for that inspecting third-party to access information which is not kept in the electronic device itself.

Conclusion

Client’s often question me about their records after charge. Unfortunately, the reality is that once a record is created, it is very likely that the record is stored somewhere for all time. For example, historically the United States and Canada have information sharing protocols that specifically connect the border with law enforcement. For example, this criminal defence lawyer understands that United States Border Services has access to the Canadian Police Information Centre (CPIC). Whenever a person a charged with a crime, it is very possible that a CPIC entry occurs. CPIC permits police across Canada to access information about criminal investigations outside of their jurisdiction. With that in mind, it is very likely that officers at the United States border also have this information. If CPIC information is then passed along to the military and intelligence services in the United States (such as the FBI), it is conceivable that the record created on CPIC now exists outside of Canada (there therefore outside of Canada’s jurisdiction).  If this is the case, then a person who is accused of crime, successfully defends that crime and successfully in the future applies to have his or her CPIC records purged, that purged record in Canada remains stored in the United States (or other international jurisdictions). 

The lesson here for all of us is that once a record is created, it may be nearly impossible to have it destroyed.

We live in an age where information sharing is ubiquitous. Many of us think that since we are doing nothing wrong, we have nothing to worry about. What is happening with searches at the United States border proves that we do have something to worry about. To that end, imagine a border guard inspecting private photographs of your wife or girlfriend. Imagine, that same border guard reading your medication history or your banking information. Imagine State agents giggling at private messages communicated in trust between you and your partner.  These are just a few examples.

While I appreciate that every country should be diligent protecting their borders and their citizens, there is a point where that protection extends too far; and when it does, perhaps we should consider staying home?  

As reported by the CBC, travel to popular U.S. destinations is down.

The total number of visitors is off more than 11 per cent year-over-year, according to data from the Las Vegas Convention and Visitors Authority, one of the most dramatic declines in recent memory outside of the pandemic.

https://www.cbc.ca/news/world/las-vegas-tourism-canadian-slump-1.7607707

Though 11% is certainly damaging, for everybody who claims to be “elbows-up”, that seems to be nearly 89% short of not being a hypocrite.

In my view, protecting our private information from inspection and potential use by intelligence agencies, warrants a much steeper decline than the paltry 11% achieved thus far.

How far will you go to protect your personal information? This Calgary criminal lawyer will go all the way – by staying away – to protect yours.

David Chow

Criminal Defence Lawyer in Calgary

www.calgary-law