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CCCA_V2No4_Dept-CrossBdr-FIN.qxd:CCCA_V1No2_Dept-CrossBdr-V1.qxd 11/24/08 2:39 PM Page 13 Cross Border Travelling light Beware of intrusive searches when crossing the border on business with a laptop. without suspecting wrongdoing on the different. In 2006, the enforcement branch traveler’s part. of the Canada Border Services Agency On April 21, the Ninth U.S. Circuit (CBSA) sent information on the matter to Court of Appeals upheld a previous court’s the Association of Corporate Travel ruling in United States v.Arnold to reverse a Executives, which had requested clarifica- district court decision. It confirmed that tion on laptop border searches and the Fourth Amendment to the U.S. seizures.The response:“CBSA officers may Constitution — which guards against examine laptop computers or other elec- unreasonable searches and seizures — does tronic storage devices (e.g. digital cameras, not require U.S. border agents to have par- MP3 players, cell phones) as part of a sec- ticular reasons for searching digital devices ondary examination” under the authority at a border crossing or at an airport. provided by the Customs Act. Then, on July 16, the CBP issued its Policy Regarding Border Search of Protecting data Information, stating that “examinations of So, what does this all mean for corporate documents and electronic devices are a counsel — and their companies’ execu- crucial tool for detecting information con- tives — who travel across the border with cerning terrorism, narcotics smuggling and digital devices? here’s no doubting that good, eth- other national security matters.” Most sur- First, it means that “travellers must Tical lawyers place a high value on prising, it affirms that “officers may detain assume that any and all data is subject to the sanctity of lawyer-client privilege documents and electronic devices,” or examination,”saysAdam Kardash,a partner and will do anything to protect their copies,“for a reasonable period of time to with Heenan Blaikie and head of its priva- clients’ and employers’ confidential perform a thorough border search.” Search cy and information management practice information. But what happens when may take place on- or off-site. in Toronto. Ackah adds: They “should that information is compromised — The court ruling and policy disclosure expect a much lower level of privacy” right in front of a lawyer’s eyes — and reveal that the burden of suspicion to per- when they cross the border. he is unable to do anything about it? form a search is not particularly high.“All Certainly, this is of great “concern for It’s what some lawyers and corporate they need is‘reasonable’suspicion,and‘rea- lawyers and in-house counsel in that a counsel have had to endure when crossing sonable’ is not defined,” explains Evelyn laptop or another electronic storage the U.S.border on business,or when com- Ackah, a partner with Fraser Milner device could include [clients’] personal ing back to Canada.Since 9/11,everything Casgrain’s Business Immigration Law information and trade secrets,” Kardash from shoes to liquids have been subjected group in Calgary.“Everything has changed says. And although customs officials on to border searches, including digital infor- since 9/11 when it comes to crossing the both sides of the border have assured the mation stored on a laptop, smartphone, border. Fear trumps individual rights.” public that any data taken will be memory stick or even an MP3 player. And although three U.S. legislators destroyed if there is no probable cause for Earlier this year, a U.S. court ruling and introduced in September the Travellers a seizure, it’s of little comfort. a subsequent policy disclosure from U.S. Privacy Protection Act that would end inva- Ackah reports one corporate client’s Customs and Border Protection (CBP) sive searches of laptops and other digital concerns:“One of the company’s managers confirmed what had long been suspected: devices, the new legislation would only crossed the border with his laptop. Upon FIRST LIGHT U.S. border officials have unfettered access protect U.S. citizens and legal residents. his return to Canada, the CBSA inserted a CD into the computer to perform a scan to a laptop or any electronic device, even The situation in Canada is hardly HIVER 2008 CCCA Canadian Corporate Counsel Association 13