Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



Travelers to the United States May Have Laptops and Cell Phones Searched and Seized

Lawyers must protect the confidential information of their clients, even their clients' names.  As a result, lawyers (and other business persons) have to be careful when traveling to, from or through the United States.  United States Customs and Border Control may ask for passwords and download information from cell phones and laptops computers.  The search may take place under the cloak of national security and the desire to find terrorists, drug traffickers, pedophile and other bad people.  However, there is little known about the selection process or the use of the information. 

Further, once the information is downloaded by U.S. CBP, there is no way of knowing whether it has been destroyed. 

Some of the problems that can arise are that U.S. CBP may:

  1. download your contacts in your Outlook and obtain the names and addresses of your clients;
  2. download and read all of your inbound and outbound email communications with all clients;
  3. download and read your memos, letters and other legal opinions that are saved on your hard drive;
  4. download and read documents that you have saved on your hard drive that have been sent to you by your clients;
  5. trace the Internet sites that you have visited in conducting research on your files; 
  6. download and review for address book on your cellphone;
  7. download and review your callers logs on your cellphone; and
  8. download and listen to the voice mails on your cellphone or your VOIP messages sent by emails.

Further, if you try to protect your clients' confidences, you will most likely be delayed and will miss your flight.  Further, you will likely have to find a local attorney to assist you in having a judge seal the records.

As a result, lawyers need to refrain from traveling with laptops or we need to find ways to protect our clients should we be one of the people selected by U.S. CBP for a search.

One possible solution for lawyers is for their firms to have loaner laptops for travel purposes.  The lawyers would only have the basic tools for performing the work required on the trip.

Another consideration is for lawyers to back-up their blackberries and cell phones and other email systems and transfer all information to an archive prior to traveling so that minimal information is contained on the blackberry or cell phone.

While one can hope that U.S. CBP will not seize laptops and cell phones from law-abiding travelers, we do not have a free pass.

please consider the information in the following article published by the John Birch Society:

COMMENTARY:

A U.S. citizen and tech engineer returning from a business trip to London objected when a federal agent wanted his password for his laptop. He protested, saying the laptop belonged to the company, not to him. Under duress, he did finally agreed to log on and watched as the agent copied the web sites he had visited.

A British citizen and marketing executive with a global travel management firm who routinely flies between London and Dulles International reported that an agent there told her he had “a security concern” with her. She was given the option of turning over her laptop or not getting on the flight. “I was assured that my laptop would be given back to me in 10 or 15 days,” said Maria Udy. The agent copied her log-on and password and asked to see her email. A year later she has still not received her laptop, nor has she been given any explanation.

With more than two dozen complaint cases, 15 involving searches of cellphones, laptops, MP3 players and other electronics, the Electronic Frontier Foundation and Asian Law Caucus, two civil liberties groups, are filing a lawsuit to force the government to disclose its policies on border searches. If conducted inside the country, these types of searches would normally require a warrant and probably cause.

Lynn Hollinger, a U.S. Customs and Border Protection (CBP) spokeswoman says a laptop may be seized if it contains information tied to terrorism, narcotics smuggling, child porn or any other criminal activity. But how could any agent, at any Customs venue know in advance if that type of info is on any given laptop? They can’t. And a Customs statement that searches are based on “information from various systems and specific techniques for selecting passengers,” is much too ambiguous for comfort. Its acknowledgement that CBP officers “may, unfortunately, inconvenience law-abiding citizens in order to detect those involved in illicit activities,” doesn’t wash either. We’re talking about unconstitutional searches and seizures here.

The Association of Corporate Travel Executives (ACTE), tracks complaints from over 2,500 member businesses and their employees who have had laptops seized and the contents copied. They said that not one of the travelers in this category was ever charged with a crime. ACTE has filed a Freedom of Information Act request, asking for information on what happens to data seized by custom agents.

Some companies would rather their executives travel with “blank laptops,” and access information through the Internet. It has its risks, but Lou Brzezinski, a partner in a Toronto law firm says “those are hacking risks as opposed to search risks.”

In a court case now pending, the government has already stated the position that it has the authority to protect the country’s borders by looking at any information stored in electronic devices without any suspicion of a crime. [Emphasis added.] They regard laptops the same as suitcases. David D. Cole, a law professor at Georgetown University disagrees. He believes it is not reasonable “for them to read your mind and everything you have though over the last year. What a laptop records is as personal as a diary, but much more extensive. It records every web site you have searched. Every e-mail you have sent.”

If the government’s position on these unlawful searches is upheld, every traveler will face the risk of search and seizure, and more. Lawyers would stand to lose confidential info, company trade secrets would be at risk, journalists would be under new scrutiny, and even teenagers could be arrested if they couldn’t prove they downloaded music to their iPods legally.

Hollinger of the CBP says customs officers “are trained to protect confidential information.” Now, doesn’t that make you feel better?

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