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CANADIAN PRIVACY AND SECURITY EXPERTS ASSAIL US LAPTOP SEIZURE POLICY

Posted on August 6, 2008

      U.S. customs agents were recently given new powers to seize notebook computers and other electronic devices of Americans and travelers of other nationalities at the border as part of an anti-terrorism program.

      A recently released U.S. Department of Homeland Security (HDS) policy indicates that agents do not need suspicion of wrongdoing to confiscate the electronic devices and that data contained in the devices may be shared with other agencies for decryption or other purposes. The policy covers laptops, MP3 players, pagers, cell phones, PDAs, voice recorders, digital and video cameras.

      Customs and border agents have in fact been conducting the seizures for sometime, but it was only in July 16 that the policy regarding the searches was released amid pressure from civil liberties and business travel groups.

      "The Canadian government should take the appropriate legal avenues to pressure the U.S. to review these policies," says David Fewer, staff counsel for Canadian Internet Policy and Public Interest Clinic (CIPPIC), an Ottawa-based public advocacy group.

      Canadian travelers should let their local members of parliament know that they are strongly opposed to the practice, Fewer said. "This essentially constitutes a warrantless search and seizure."

      "Just because a traveler is crossing the U.S. border doesn't mean his of her privacy has to fly out the window," the lawyer said.

      The new guidelines will "needlessly" exacerbate long queues and delays at U.S.-Canada entry points for both business and leisure travelers, he added.

      The search is a "reactionary short-term move" which saddles Canadian businesses with additional burden and costs when conducting cross-border activities, according to David Senf, director of research for Canadian security and infrastructure software at IDC Canada.

      "I hope that this is just a tempest in a teapot... If this new set of powers is applied broadly, Canada and other nations should consider taking action to mitigate its application and negative impact."

      Canadian tourism is likely to take a hit as well since the searches also apply to Americans crossing back into the U.S., Senf added. "Its (electronic device search policy) existence costs Canada's economy when the upside for U.S. protection is likely minimal."

      Senf also said travelers should consider how much they can trust officials with the handling of personal and corporate data. "Look at the San Francisco DA's (district attorney's) handling of usernames and passwords entrusted to him - they were publicly disclosed as exhibits in the case against Terry Childs." (Child's was an IT administrator for the City of San Francisco. He was recently arrested for locking-up the city's IT network.)

      South of the border, the head of a business travelers' association testified in June 25 before the U.S. Senate committee conducting the heading on laptop searches.

      The "unjustified retention and/or copying of proprietary and sensitive business information" imposes both personal and economic hardship on business travelers and their corporations," Susan Gurley, executive director for the Association of Corporate Travel Executives (ACTE)told the committee. The ACTE represents some 2,500 business travelers from around the world.

      A February 2008 survey of 100 ACTE members indicated that: at least seven individuals were subjected to the searches. About 81 per cent of the respondents were not aware that authorities were empowered to copy and confiscate data contained in their devices, and 50 per cent of the respondents said a laptop seizure could damage their professional standing in their company.

      Notebook computers and other mobile devices such as BlackBerries and cell phones which contain both personal and confidential business information and now very common, Gurley said. "These devices constitute the office of today."

      "As a businessperson returning to the U.S., you may find yourself locked out of your office indefinitely and thereby deprived of the resources required to sustain your livelihood."

      For instance, an unanticipated seizure of one's mobile device can deprive an executive or company of "the very revenue a business trip was intended to create".

      The confiscation and downloading of a lawyer's client-related information could also potentially violate attorney-client privilege. Copying and sharing of journalists' notes and interviews can impact the confidentiality of the sources.

      The ACTE asked for greater transparency, a privacy impact assessment and legislation requiring "at the minimum", reasonable suspicion to warrant a search or seizure of electronic files and devices.

      The U.S. Custom and Boarder Protection policy released last month, stipulates that:

• Officers may detain documents and electronic devices or copies of these for a reasonable period of time. The search may take place on-site or at an off-site location;

• When officers determine (through a review of information inside the electronic devices) that there is probably cause of unlawful activity, they may seize and retain originals and/or copies of the relevant documents or devices;

• Officers may make copies or share seized information with other Federal agencies to seek help in translation of decryption assistance;

• If it is determined that there is no probable cause to seize the data, any copies of the information must be destroyed;

• Business or commercial information in document or electronic form shall be treated as business confidential information. Depending on the nature of the information, the Trade Secrets Act, the Privacy Act and other laws may govern or restrict the handling of the information;

• Officers may not read or permit others to read correspondence contained in sealed letter class mail (the international equivalent of First Class mail) without a search warrant or consent. However, only articles in the postal system are considered mail. Letters carried by individuals or private carriers such as FedEx, UPS or DHL are not considered mail and are subject to border search and;

• Correspondence, court documents and other legal documents may be covered by attorney-client privilege. If officers suspect such documents may constitute evidence of a crime, the officer must seek advice from the Associate or Assistant Chief Counsel or the appropriate U.S. Attorney's office before conducting a search of the document.

      The searches will still cause considerable disruption, according to Fewer of CIPPIC. "People will still be delayed and perhaps miss flights. There's no way of knowing how long a 'reasonable period' of searching through files would take".

      For some travelers, it might be advisable to travel with laptops that do not contain sensitive material and have these documents emailed to their laptop after clearing customs, he said.

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