Not long ago, the US Supreme Court opined in Riley v. California:
Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans the privacies of life.
Riley involved evidence of serious criminal activity (gang shootings, drugs, firearms, etc.).
Notwithstanding this, SCOTUS decried warrantless cell phone searches and laid the groundwork for its conclusion that, in laypersons’ terms, snooping through someone’s cell phone is not just rude… it has become an extraordinarily intrusive act. The Court underscores that these devices contain a “digital record of nearly every aspect of [users’] lives.” It exclaims how 12% of smartphone users even take their phones with them into the shower! (The Court takes no judicial notice that this figure must be even higher for smartphone users who prefer baths… but it probably could have.)
As we pour more of the privacies of life into our devices (personal habits revealed by app data, banking info, gigs of connected cloud storage, our social media troves), we probably (somewhat unthinkingly perhaps) recognize that it’s all kind of a bad idea, and maybe a horror show waiting to happen. What if something entirely lawful is taken out of context? What if, as happened to this Canadian traveler, you are judged and humiliated?
But when we pour the privacies of our clients’ lives into our addictive little black mirrors, it’s time to pause and check ourselves at a professional ethics level.
The Law Society of BC’s current president, Herman Van Ommen, QC just went on record with a request of the Canadian Border Service Agency to update its operational bulletins around privileged communications. Moreover, his letter seeks a coordinated bilateral approach to safeguarding privileged electronic communications at the US/Canada border.
The LSBC’s opinion is that a lawyer’s electronic device is a “law office”. The position is based on Canada (Attorney General) v. Festing 2003 BCCA 112, a case where the LSBC (as intervenor) successfully advocated for an expanded definition of a law office that includes “any place where privileged documents may reasonably be expected to be located.” You may agree this seems like a strong argument.
Back in mid-March, when the Electronic Frontier Foundation (“EFF”) released its 2017 guide to protecting digital privacy at the US border, I offered some scattershot observations here on Slaw as fodder for Canadian lawyers who travel. This year has seen a torrent of interest and debate over the perils of border searches of digital devices. The EFF followed up with a three-part series on the Constitution at the border:
It would be surprising, but very encouraging, if a bilateral arrangement for protection of privileged documents at the border ever emerged.
— Nate Russell is a liaison lawyer with Courthouse Libraries BC. Find him on Twitter @nrusse.