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Ask Aliya: How to Protect Client Information While Traveling

“Ask Aliya” is a column for lawyers who are the first legal hire at their company and need advice from an in-house lawyer who has been there before. Aliya Ramji is the director of legal and business strategy for Figure 1 Inc., a network used by more than 1 million healthcare professionals to share cases and collaborate. To have your legal questions for startups answered, email [email protected] with "Ask Aliya" in the subject line.

Dear Aliya,

I travel across the border between Canada and the United States frequently and have seen other travelers who have their electronics searched. How can I protect confidential client information from being revealed in the event my laptop or phone is confiscated?

Bamboozled at the Border

Dear Bamboozled at the Border,

I regularly find myself being searched at the border, but fortunately, neither the Canada Border Services Agency nor US Customs and Border Protection have demanded to see the contents of my electronics. That said, US CBP claims legal authority to inspect, search, and detain "[a]ll persons, baggage, and merchandise arriving in, or departing from, the United States." I have plenty of colleagues who have faced these issues and recommend the following:

First, assert privilege. In the event your device is confiscated or you are asked to disclose the contents of your device, explain that you are an attorney and the information on your device is confidential. Explain that revealing this information would be a breach of your professional obligation, specifically attorney-client privilege. If you are given the opportunity, assert privilege in writing and clarify the information on your device that you would be considered subject to that privilege.

[Related: Ask Aliya: Working with Companies That Refuse to Erase Data]

Unfortunately, it is likely that your assertion of privilege will be denied. When this happens, ask for an official objection to be recorded. Having an objection on the record will allow you to dispute any allegations of misconduct or violations of professional obligations in the future. You should also ask to speak to a superior officer and request a consultation with legal counsel or the US Attorney's Office to determine if any files may be isolated from the search.

If you travel across the border with confidential information on a regular basis, you may want to carry some form of attorney identification. Furthermore, if the information that you are carrying is highly sensitive, or of a highly confidential nature, you may want to forgo entering the country at all.

If you do travel across the border frequently, consider taking precautions. Some attorneys do not travel with any confidential information. In order to do this, they use either separate devices for their in-country and out-of-country business, or they simply travel with clean devices. A clean device is one that has been reset, erased, or encrypted. One problem with this approach: Completely clean devices or so-called burner phones may raise even more suspicion from border security.

[Related: Ask Aliya: Ensuring Attorney-Client Privilege with EU Clients]

A final option is to use strictly cloud-based services on your phones, tablets, and computers so that no information is stored on the device itself. Remember, border security should only be looking at the information that is on your device, not the information that is stored in the cloud. For added security, turn on the airplane mode feature in order to avoid downloading new files.

One of my colleagues often says "the best way to keep a secret is not to have it." This is definitely true of traveling with confidential information. If you travel without your devices or with limited information on your devices, you can be assured you will not be compromising client information should you be subject to search and seizure at the border.

Safe and secure travels,

Aliya

About the Author

Aliya RamjiAliya Ramji is the director of legal and business strategy for Figure 1 Inc. She also was a 2016 recipient of ACC’s Top 10 30-Somethings.


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