Two recent court rulings in the United States allowing border guards to examine the contents of electronic devices such as laptops without a warrant could be a concern for Canadian lawyers when they travel across the border, say lawyers.
"The issue is whether or not a lawyer travelling into the United States would be subject to a search of their laptop and for that matter their BlackBerry as well," says Lou Brzezinski, chairman of the e-commerce group at Blaney McMurtry LLP. "Both of them are devices which contain information of a confidential nature and much of the e-mail could be solicitor-client privileged."
Brzezinski says there are two questions that arise with this issue. The first is, can Canadian lawyers do anything about it, and the second is, if they can, what are the realistic solutions?
"The first issue is, no, we can't do anything about this. This is U.S.-made law, which has been held in three cases now to be constitutional and permitted, and effectively what they've said is that the constitutional freedom of being secure from an unreasonable search without a warrant does not apply when you are entering a U.S. border," he says.
He adds that border guards have historically been permitted to search the possessions of parties coming into the U.S.
"What they have done is they have just essentially extended that search prerogative to the contents of a laptop computer and they don't distinguish between a laptop computer and a suitcase - as far as the courts are concerned, it's the same thing".
Brzezinski notes, however, that in the two recent cases, U.S. v. Romm and U.S. v. Ickes, the border guards had compelling reasons to believe that there was illegal material on the computers.
According to the judgment in Romm: "In sum, we hold first that the ICE's forensic analysis of Romm's laptop was permissible without probable cause or a warrant under the border search doctrine."
The Ickes decision noted that "Ickes claims that our ruling is sweeping. He warns that 'any person carrying a laptop computer . . . on an international flight would be subject to a search of the files on the computer hard drive.' This prediction seems far-fetched. Customs agents have neither the time nor the resources to search the contents of every computer."
In Ickes, border guards confiscated a computer and about 75 disks containing child pornography from John Woodward Ickes Jr.'s van after he crossed the U.S.-Canada border. In 2003, he was convicted of transporting child pornography.
"Practically speaking, 99.9 per cent of people going into the United States with a laptop, if they're searched, they will just open it up and close it. Rarely or doubtfully will there be the search of a lawyer's laptop," says Brzezinski.
He adds, however, that the rulings are something that Canadian lawyers will have to keep in mind from now on.
According to Brzezinski, at a recent meeting of the e-commerce group at Blaney McMurtry, one proposed solution to allow Canadian lawyers to protect privileged information was to take an empty laptop across the border and use remote access.
However, as U.S. Privacy Spot blogger Chad King notes, even if you use remote servers, there are traces, such as temporary files of any Word documents that are opened, that will be on the hard drive and might be recoverable through forensic examination.
Another solution could be file encryption, but Brezezinski says, "the issue, of course is, if you go in there and the border people say, tell me what the encryption key is, or the password, and you don't give it to them, it's as if you've committed an offence right there on the spot anyway."
He adds that devices such as the BlackBerry could prove to be more problematic, because e-mails are always being delivered.
The issue came to the attention of the e-commerce group in the last couple of weeks, said Brzezinski and they felt it was something they should address and come up with a solution to.
"Everybody, really, is going to be dealing with the issue," he says.