January 31, 2020
By Noel Courage
This article will discuss the broad powers of search of electronic devices held by US and Canadian border officials. There is a reduced expectation of privacy at border crossings, due to other imperatives such as security, immigration and taxation. These searches create a risk of accessing solicitor-client privileged information. There is also a risk to confidential information on devices, such as technical information or business information. Some of this information could potentially be trade secrets. For confidential information to qualify as a trade secret, the information must be treated as a secret and reasonable efforts must be made to maintain its secrecy. It is generally good practice not to allow important confidential information and trade secrets to be carried around unnecessarily, and this practice is reinforced when one considers the risk of a border search.
While the risk of a border search is not a new issue, in the sense that patent attorneys and inventors historically often travel with confidential information (electronic or paper copy), the volume of information that can be stored and copied in modern times makes the extent of the potential probing more significant.
Below is a brief review of border official search powers, to flag the risk and extent of a potential search. This will be followed by a brief assessment of the consequences for IP of such a search.
For general information on how to minimize the amount of information you carry, and how to deal with border officials in the heat of the moment, see the many examples of online advice, such as here, here (download link) and here.
Electronic Device Searches Are Increasing, but Still Infrequent
There is a risk when crossing an international border that customs officials may ask a traveller to authorize access to confidential information. This creates a predicament for the traveller whether to agree to the search (and if so, how to limit it), or whether to potentially withdraw the request to cross a border. A lawyer may also wish to try to assert solicitor-client privilege.
The incidence of searching is still relatively low in the US considering that there are hundreds of millions of US border crossings per year. Searches by the US government are increasing. US customs reported about 8,500 searches of electronic devices in 2015 and 32,000 in 20171 (all US borders, not just US-Canada). In fiscal year 2019, US CBP processed 414 million travellers and searched 40,913 electronic devices, still less than 0.1% of the travellers2. The number is smaller in Canada, estimated at 0.015% of all cross-border travellers from late 2017 to early 2019. In some cases, the information on phones and laptops has been copied by customs officials or devices seized. The overall risk of a phone or laptop search is therefore low, in relation to the number of border crossings, but it is important to be aware of the risk.
Canadian Customs Searches
The Canada Border Services Agency (“CBSA”) officers can examine devices such as laptops and smartphones under the authority of Canada’s Customs Act (no warrant is required)3. CBSA policy is that examinations of personal devices may be done only if there are grounds or indications that “evidence of contraventions may be found on the digital device or media.” The Canadian courts have not yet ruled on whether a border officer can compel production of a password. If a traveller refuses to provide a password, the device may be held for further inspection.
There appears to be uncertainty over the extent that CBSA has legal authority to search any electronic device of a Canadian or US lawyer4. A lawyer may not be able to rely on a claim of privilege to adequately protect clients’ confidential information5. A Canadian lawyer that recently refused to provide passwords for his phone and laptop to Canada customs had both devices seized6. That lawyer filed an application in court challenging the search as lacking probable cause or a warrant, and also challenging that materials covered by solicitor-client materials may not be searched.
With respect to the potential scope of a search, according to the CBSA policy, if officers do access a device, they may only examine what is stored within a device, and should disable wireless and internet connectivity. This prevents access to any data stored external to the device, for instance, on social media or in a cloud.
US Customs Searches
Under recent policy, US border officials were permitted to demand passwords to a laptop or mobile phone. The device could be searched as part of as a routine border inspection. A lawyer may not cite attorney-client privilege and cross the border unimpeded, in the face of a demand for a customs search or provision of a passwords to the government. US Customs has issued a directive on searching electronic devices containing legally privileged materials, see this link and this download for general information.
These powers may be reined in, depending on the outcome of US litigation. The power to conduct warrantless border searches on devices of Americans was successfully challenged in a US district court lawsuit at the initial level of court in a late 2019 decision (held to be an unreasonable search and seizure violating the Fourth Amendment)7. This would reduce the risk to travellers, if the decision stands up after any appeal.
The U.S. Customs and Border Protection directive8 sets out criteria for advanced searches by U.S. officials, which involve potentially connecting to external equipment to review, copy or analyze the contents of a device, and require reasonable suspicion of illegal activity or if there is a national security concern. US border officials may inspect data on the device but should generally not intentionally access information stored remotely. Internet connectivity should be disabled. The United States Department of Homeland Security also has a written policy on Border Searches of Electronic Devices. Both the Directive and the Policy acknowledge that special handling is required to protect proprietary business and technical information and maintain its confidentiality. Attorney-client privileged information is also designated as requiring special handling.
The Consequences of a Search for IP
What is the risk to IP rights if customs officials happened to review a phone or laptop and see trade secret information? Firstly, there is no basis to suggest that customs officials have, or would, review information for any purpose other than customs and border security. It can be assumed that such officers are simply trying to do their job in most cases. Misappropriation for a nefarious purpose seems unlikely, though it is simplest, and consistent with good practice, to just not risk anyone having unnecessary access to confidential information. Customs review is not likely to be considered a disclosure that would disqualify information from being a trade secret. For example, the US Directive and Policy described above require confidentiality to be maintained for trade secrets. From a patent point of view, customs review of confidential information is therefore also unlikely to amount to a public disclosure that can create a statutory bar to patenting. It is nonetheless an issue that in-house and private firm patent attorneys need to be aware of to avoid unwanted review of confidential information, disruption of travel plans and potentially awkward discussions with clients.
Don’t Travel with Confidential Information
The best practice for those concerned about potential search at the Canada-US border remains to travel without confidential information, to the extent possible. Limit the devices brought or remove sensitive information from devices that could be searched. Store it in the cloud and retrieve it at your destination. That way, a patent attorney or inventor can feel more at ease to potentially give access to an electronic device, if required. Not having confidential information on a device should avoid the lawyer’s dilemma of whether to refuse access to the password and information per professional code of conduct requirements.
Nothing here should be construed as legal advice or legal representation. Click here for an expanded disclaimer.
This article was first published in the American IP Law Association (AIPLA) Biotechnology Buzz on January 20, 2020.
3 “Your privacy at airports and borders.” Government of Canada. Revised July 2018. https://www.priv.gc.ca/en/privacy-topics/public-safety-and-law-enforcement/your-privacy-at-airports-and-borders/
4 On June 19, 2014, the Canadian Bar Association wrote to the Minister of Justice and the Minister of Public Safety and Emergency Preparedness to seek support in establishing a working group to develop a policy for border searches of lawyer’s laptops and other electronic devices. This letter was written after the Canadian Bar Association passed Resolution 13-06-A “Solicitor-Client Privilege Claims at the Canadian Border“. December 2018 from the Federation of Law Societies of Canada.
5 “Crossing the Border with Electronic Devices: What Canadian Legal Professionals Should know.” Federation of Law Societies of Canada. December 14, 2018.
6 In another case in the Nova Scotia Provincial Court, a person pled guilty after he was arrested and charged pursuant to section 153.1 of the Customs Act (Canada) for failing to provide passwords or allowing the examination of the documents in his/her briefcase after a swab of his luggage tested positive for cocaine.
7 Court rules against warrantless searches of phones, laptops. US News & World Report. November 12, 2019.
8 CBP Directive No. 3340-049A: Border Search of Electronic Devices.
Information on this website is for information only. It is not, and should not be taken as, legal advice. You should not rely on, or take or not take any action, based upon this information. Professional legal advice should be promptly obtained. Bereskin & Parr LLP professionals will be pleased to advise you.