In an April 4, 2025 travel advisory, the Canadian government urged Canadians to “expect scrutiny” when crossing the US border. In particular, it has been noted that US law permits Customs and Border Protection (CPB) agents to demand passwords to unlock electronic devices during inspections. Travellers who refuse the demand risk having their electronics confiscated and undergoing long delays. While currently posted information by US CPB suggests the incidence of border searches of electronic devices is small, recent media reports indicate the incidence of such searches, which are available without warrant, may be increasing.
These circumstances pose particular risk to lawyers if they are taking phones or computers that contain information relating to their law practice and client information across the border or into preclearance zones at airports. Lawyers have an obligation to protect the confidential or privileged information of their clients in their possession. Permitting CPB agents to access devices that contain such information may be a breach of your professional responsibilities.
The safest course, if travelling across the US border, is not to bring such devices, although if the purpose of travel is for work that may be impractical. If this is the case, it would be prudent to obtain assistance from information technology professionals regarding the security of your devices and to seek alternatives to carrying potentially privileged information across the border. It may also be prudent to consider obtaining legal advice regarding your options in the event a border official seeks access to the entirety of your electronic device.
Below are some additional suggestions from the Federation of Law Societies Canada to consider for travelling with electronic devices. Please note, these suggestions have been edited and added to from their original form.
- Establish a policy at your firm about cross-border travel by legal counsel and staff carrying smartphones, laptops and other electronic devices that may contain confidential information about clients.
- Get help from information technology security professionals regarding the security of your devices and alternatives to carrying potentially privileged information across the border. Some firms have separate clean laptops and phones available for cross-border travel. It may be advisable to forensically clean confidential information from your device before travelling (including cookies, cache and browsing history).
- If you do not maintain separate devices for work and personal matters, separate your work and personal accounts on your laptop or smartphone, if possible, so that privileged information in one user account can be easily identified during any prospective searches over which you would claim privilege. Characterize sensitive information, clearly marking privileged documents as solicitor-client privileged.
- Do not be intentionally vague to border officers. Legal counsel should be prepared to explain the purpose of their travel, and if appropriate, their connection to a Canadian law practice, without divulging confidential client information. Do not rely on your electronic device to answer travel questions. Instead, have a printed itinerary to show to border officers.
- Communicate with your clients about what information, if any, they are comfortable having you travel with across borders. Consider that some clients may not permit their confidential information to be accessed on an electronic device outside of Canada.
- Bring less data with you. If you use a cloud-based storage provider, you may wish to delete cloud-based applications before crossing the border and reinstall them afterwards. Similarly, client contact and calendar information can be deleted from smartphones and subsequently restored through internet services. Contact your IT security professionals about how to securely delete and reinstall deleted applications.
- Use encryption and secure passwords. Use two-factor authentication to control access to your accounts. It will not deter initial access to your electronic device during a border search, but in the event that your electronic device is seized for further examination, protected accounts may not be easily accessible.
Lawyers who need to travel across the US border with their work-related electronic devices should watch for updates from both the Canadian and US governments on this issue.
