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Cross-Border Travellers Beware: Confidential Information is at Risk

Much attention has been paid recently to the extent to which customs officials can search electronic media devices such as laptops, digital music players, personal data assistants and BlackBerry® devices accompanying travellers when crossing international borders. Most of this attention has focused on the US Customs and Border Patrol (CPB), as they have recently published a policy statement affirming their position that they may conduct "suspicionless" searches of electronic devices entering the United States. However, the topic is equally important with respect to the Canada Border Services Agency (CBSA), as many business professionals enter and re-enter Canada daily with electronic devices in hand and the CBSA has stated that its examination authority under the Customs Act extends to electronic storage devices.

It is very useful to consider each issue as it applies to both sides of the border.

1. Electronic Devices are "Ordinary Goods" for Customs Purposes

Electronic devices are unlike other items travelers typically carry in their luggage. These devices often contain important, confidential information, such as trade secrets or legal documents. Unfortunately, border officials from both the United States and Canada do not treat electronic devices any differently than they do other goods.

Following closely on the heels of a decision of the US Court of Appeals for the Ninth Circuit affirming the CBP’s right to search electronic devices, the CBP recently issued a policy statement clarifying its position on searches of electronic devices at the border and emphasizing that the examination of electronic devices is a crucial tool for detecting criminal behaviour and regulatory violations. Thus, these devices, like all other goods entering the United States, may be searched by the CBP.

CBSA has yet to publish a report detailing its policy on border searches of electronic devices. That said, the CBSA has stated that its examination authority under the Customs Act extends to electronic storage devices.

2. Searches without Suspicion

Given their characterization as ordinary goods, it follows that a border official can search travellers’ electronic goods even in the absence of suspicion regarding the traveller or the electronic device.

US officials have clearly stated this as their policy.

Canadian policy on this matter is not clearly spelled out, though sources suggest that it is similar to the American one.

3. Detention of Electronic Devices for Customs Review

The detention of a laptop or BlackBerry® device at the border could have very harmful effects for the business traveller.

The CBP policy statement affirms that officers may detain electronic devices in order to properly search them, which may include translating and decrypting the documents. This search can occur on-site or the device may be shipped to an off-site location.

Without a clear policy statement, it is uncertain as to what extent CBSA officers can, without suspicion, detain electronic devices in order to conduct searches. However, under the Customs Act, where officers have reasonable grounds to believe that a contravention has occurred, they may seize and detain these goods.

4. Border Officials’ Duty of Confidentiality is Permeable

Both CBP and CBSA officials have made efforts to assure travellers that their confidential information will be protected. Despite this attempt, there are many exceptions to the general rule of confidentiality.

For example, documents detained by US CBP officials at the border without individualized suspicion may be shared with third parties in order to translate, decrypt or receive explanations regarding complex subject matter. Where officers retain documents or devices based on probable cause of unlawful activity, they may share copies with federal, state, local and foreign law enforcement agencies, albeit only to the extent consistent with applicable law and policy.

The Canadian Customs Act provides many exceptions to the general rule of confidentiality. For example, information gathered during a customs search can be released for use in any criminal proceedings and also for civil proceedings when those proceedings relate the administration or enforcement of legislation such as the Income Tax Act, the Customs Act, the Employment Insurance Act and any other legislation that provides for the imposition or collection of a tax or duty.

5. Vulnerability of Information Subject to Legal Privilege

A further concern is the potential search of electronic devices containing information covered by solicitor-client privilege.

In its recent policy statement, the CBP declared that although material covered by solicitor-client privilege may be subject to special handling procedures, it is not necessarily exempt from a border search. Moreover, if the documents are privileged but the CBP officer suspects that the content of the document may constitute a crime or otherwise pertain to a determination within the jurisdiction of the CBP, the officer may search the privileged document after seeking advice from the Associate/Assistant Chief Counsel or appropriate US Attorney’s office.

Neither the Canadian Customs Act nor the CBSA’s publications have directly addressed the issue of border searches of documents covered by solicitor-client privilege.

McCarthy Tétrault Notes:

The following are suggestions for the protection of sensitive materials from a Canadian legal perspective for those who plan to enter or re-enter Canada.

• Know how to characterize your sensitive information — Not all types of information are treated equally. Indeed, the CBSA distinguishes "biographical core information," which includes income tax, banking and health records, and accords it a greater level of confidentiality. Characterizing your sensitive information as biographical core information may improve your chances of maintaining confidentiality.
  
• Know your rights — Remember that these broad investigative powers are limited to border searches. Canadian case law tends to justify these powers by emphasizing the reduced expectation of privacy at the border. Officials therefore generally must have individualized suspicion before searching your electronic device once you are inside Canada’s borders.
  
• Minimize risk — No matter which international border one is crossing, it is always wise to take positive steps to minimize the risk of exposing sensitive information. Encrypting this information might not be sufficient since, at least in the United States, border officials may seek decryption assistance even in the absence of individualized suspicion. A more effective alternative is to bring a clean laptop when travelling internationally. This should not pose any strategic difficulties if it is possible to connect remotely to the company’s server in order to access any required electronic documents. Be sure to keep the laptop clean for the border crossing back into the home country by not saving any new documents to the laptop’s local drives.