Update on U.S. Border Searches

Solicitor-client material stored on a laptop will not necessarily be exempt from data searches under revised U.S. guidelines on border searches of electronic devices, but it might invoke new procedures that apply to sensitive documents.

Anyone who regularly travels to the U.S. on business should be aware of the Department of Homeland Security (DHS) guidelines announced on August 27, 2009, which detail what constitutes a lawful search and the process governing devices that are searched and/or detained at the border. Employers, including law firms, should also consider adopting some standard procedures for how sensitive data should be stored on electronic devices taken on business trips.

The guidelines go into some detail about how sensitive information is to be treated by border officers. For example, an officer who encounters material labelled as “attorney-client privileged” or “attorney work product” must consult with his agency’s counsel, or the local U.S. Attorney’s office, before proceeding with his examination. Two other categories of “sensitive documents” – medical records and work-related information carried by journalists – invoke similar procedures. In addition, when the data being reviewed is “business confidential,” it will be treated under applicable agency rules and U.S. federal statutes.

There are also limitations on the length of time devices can be held by border officers, and requirements that data only be retained if there is probable cause that a crime has been committed.

The DHS says the guidelines will enhance transparency and oversight by ensuring that travellers know their rights and that border officers and agents “understand their responsibilities to protect individual private information.” Civil liberties advocates in the U.S. say the changes, while welcome, do not address their fundamental concern with the DHS’s policy of searching travellers’ laptops without suspicion of wrongdoing.

For the frequent business traveller, it bears repeating: U.S. Customs officers have the authority to search and detain any device capable of storing electronic information for any reason; they can examine the electronic device without the traveller present; they can copy from the device or “detain” the device; and they do not need to obtain the traveller’s consent to conduct the search. “Electronic devices” can include computers, BlackBerrys or similar devices, cell phones, travel drives, DVDs and CD-ROMs, cameras, music and other electronic media players.