For The London Free Press – November 30, 2009
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TRAVEL: The practical reality is we have no control over these computer searches, so it’s wise to be prepared
Last summer, directives were issued by the U.S. Department of Homeland Security for searches of computers and other electronic devices at U.S. border points.
The stated goal was to combat crime and terrorism while still protecting personal privacy and civil liberties.
The directives allow border agents to search, detain, copy or examine any electronic device capable of storing electronic information for any reason.
As Homeland Security Secretary Janet Napolitano said at the time, “The new directives . . . strike the balance between respecting the civil liberties and privacy of all travellers while ensuring (Department of Homeland Security) can take the lawful actions necessary to secure our borders.”
Where “sensitive” information in involved, including solicitor-client privilege and medical records, border guards are directed to consult with agency counsel or the local U.S. Attorney’s office. But any information outside of this narrow privileged category may be searched.
Whether such searches truly accomplish the goal is questionable. As information freely flows across borders via the Internet, physical searches of computers will be of little use. And laws such as copyright are so fact-dependent, and even pose challenges to courts trying to sort out what is allowable, that it’s not a decision a border agent should make.
The practical reality is that we have no control over these border searches. So the Canadian Bar Association (CBA) has published a list of suggestions for lawyers crossing the border with laptops or electronic devices.
While the association published its work for the legal community, the suggestions are valuable for anyone entering the U.S. with an electronic device containing sensitive or confidential information.
The full text can be found at www.cba.org/CBA/PracticeLink/ TAYP/laptopborderupdate.aspx, but here are some of the most helpful tips:
– Travel with a “bare” computer that contains only the most essential information. Ensure that all work with data is done via a secure virtual private network (VPN). Consider using SaaS (software as a service) programs based on the Internet, rather than your computer’s hard drive.
– Turn off your computer early: At least five minutes before you get to U.S. Customs, make sure your computer is turned off so unencrypted information in your computer’s RAM has adequate time to void itself.
– Back up your data: Self-explanatory.
– Store data on small devices: Smaller devices can be carried more inconspicuously.
– Protect your phone and PDA: Phones now carry a considerable amount of information and needed to be kept as “clean” as possible in case they’re confiscated.
– ‘Clean’ your laptop once it’s returned: This will ensure that no programs or spyware have been installed on your computer.
In summary, the prudent approach for taking a computer into the U.S. is to ensure it contains no confidential, sensitive or privileged information.
Don’t rely on encryption, because the border agent may simply ask for your password.
The better approach is to leave all information on a Canadian server and access it remotely once in the U.S.