Confidential information at risk when crossing the Canada-U.S. border

[Sep 19, 2008 12:39 PM]

 Laptops, digital music players, personal data assistants and BlackBerry devices are considered "goods" by customs officers on both sides of the Canada-U.S. border, and can be searched and seized without a warrant.

Although these electronic devices may contain confidential information or trade secrets, rules and regulations in the U.S. and Canada allow their search and seizure even in the absence of any suspicion against the traveller.

There have been a number of recently reported cases to this research project and in the media, of individuals travelling to the U.S. or returning to Canada, who have been compelled to provide their passwords to customs officials, and had their laptops searched and seized. In some cases, laptops were eventually returned to their owners by messenger services several weeks later. However their owners could not find out whether their e-mails and other communications had been copied leaving them wondering why, and with whom, their private information is being shared.

In its July 16th 2008 Policy Regarding Border Search of Information, the U.S. Customs and Border Protection states that: "officers may examine documents, books, pamphlets, and other printed material, as well as computers, disks, hard drives, and other electronic or digital storage devices." Moreover copies of documents made by the CBP may be shared "with Federal, state, local, and foreign law enforcement agencies…"

In Canada, the CBSA (Canada Border Services Agency) insists that its examination authority under the Customs Act extends to electronic storage devices and that it considers laptops and similar electronic devices as "goods" that have no special status at the border.

Officials at CBSA say their agents have the right to search the contents of any electronic device coming into Canada, including e-mails and call histories.

"We don't require reasonable ground to believe that an offence has been committed to examine goods for admissibility, and that includes electronic devices," spokesman Christian Williams said.

Many law firms in Canada now require their employees to travel with virtually blank laptops and BlackBerry devices.

On its website, the Canadian law firm McCarthy Tétrault warns that encrypting confidential information may not be sufficient in the U.S., and advises individuals to minimize risk of exposing sensitive information. "A more effective alternative is to bring a clean laptop when traveling internationally."