Welcome to the USSA.
Company executives and employees traveling across the American border may be subject to random searches of files and information stored on their laptop computers, computer discs, and other electronic media.
These searches affect both American citizens and non-citizens, and customs agents do not need to suspect any criminal activity before performing a search. In a typical search, customs agents seize a laptop computer and inform the owner that the laptop will be returned by mail at a later date. Agents then create a “mirror image” of the laptop’s hard drive, copying every document, photograph, email, and other file on the computer. Agents may perform forensic searches of the files and may store the copied files indefinitely. Usually, the government their laptops have never been returned.
Sometimes a search may be less intrusive. For example, an agent may ask a traveler to turn on the laptop computer at a customs checkpoint. Agents then scan various files for suspicious information without actually copying the files or seizing the computer.
Either type of search poses risks for executives whose computers contain privileged legal communications, trade secrets, or other confidential and proprietary information. These searches also threaten to inhibit the travelerХs ability to conduct business during the trip.
Companies and executives need to prepare for the possibility of a seizure and search of laptop computers at U.S. points of entry. Go to (http://www.cbp.gov/xp/cgov/travel/admissability/authority_
to_search.xml). Below are some specific issues to consider.
HELPFUL HINTS FOR COMPANIES
1. Minimize the Risk.
In light of the possibility that the government could take possession of all the information stored on a laptop computer, international travelers should minimize the amount of proprietary, privileged, or otherwise confidential information they store on the laptop during their trip. Laptops carried internationally should contain no more sensitive information than is necessary for that trip. Some companies are choosing to designate “travel computers” that do not contain large volumes of stored information and can be erased between trips.
2. Be Prepared.
These searches can happen to anyone and when the U.S. government seizes a computer, it may take time for the computer or other hardware to be returned. If a computer contains information (documents, presentations, contact information, etc.) that the traveler will need, the company should maintain a backup to replace the materials in the event of a border seizure. For example, a company could maintain a backup version on system servers that can be emailed or express delivered by disc.
3. Be Insured.
Many companies have insurance policies that cover the loss of computers and electronically stored information. Border seizures of laptop computers represent another way in which a company can suffer such losses. By negotiating to have a policy cover these seizures, companies can protect themselves against the cost of replacing computers that are not returned and against the possible disclosure of confidential information.
WHAT COMPANIES SHOULD TELL THEIR EXECUTIVES AND EMPLOYEES
1. Cooperate but don’t consent.
If agents confiscate an employee’s computer, the employee should be cooperative and respectful. These seizures are legal, and customs agents are just doing their jobs. But if an agent asks the employee for permission to search the contents of the computer, the employee should respectfully decline to consent either verbally or in writing. Although the agents may still take the computer and perform the search, the company will retain more legal rights if employees decline to consent.
2. Get a receipt and as much information as possible.
Customs agents usually provide receipts for computers they confiscate - make sure your employees get one. Employees should also try to get as much information as possible about who to contact if they do not receive the computer back, if the computer is damaged, etc.
3. Inform the Company as Soon as Possible.
Employees should immediately inform the company’s legal department or a designated supervisor if their computer is seized.
A FINAL LEGAL NOTE
The law governing these searches is currently in flux. A federal court in Los Angeles recently ruled that these laptop searches violate the Constitution. Other federal courts, however, have allowed these searches, and customs agents likely will continue this practice until the federal courts or Congress resolve the issue. A clear resolution is unlikely to come soon, so for the foreseeable future, international travelers should prepare for the possibility that their laptops, computer discs, and other electronic media can be searched and seized at the border.
Freedom on the march.