Traveling for work? Expect more searches of electronic devices

Federal authorities’ actions will affect how business people connect to data on road

Share on FacebookShare on Google+Tweet about this on TwitterShare on LinkedInEmail this to someonePrint this page

Inter­na­tion­al busi­ness trav­el­ers take heed: Start­ing now, and even more so going for­ward, you’ll need to care­ful­ly con­sid­er how your com­put­ing devices serve as a con­duit to sen­si­tive com­pa­ny data.

This includes every­thing stored direct­ly on your smart­phones and laptops—and every­thing reach­able from your per­son­al com­put­ing devices that may be stored in the inter­net cloud.

Elec­tron­ic media search­es by gov­ern­ment author­i­ties already were on a steeply ris­ing curve due to ter­ror­ist threats. For instance, dig­i­tal device search­es at U.S. bor­der cross­ings rose to 23,877 in 2016 vs. just 4,764 in 2015.

Relat­ed arti­cle: Snow­den expounds on gov­ern­ment sur­veil­lance at Pri­va­cy XChange Forum

Then in ear­ly March, Pres­i­dent Trump issued an exec­u­tive order sig­nal­ing that trav­el­ers enter­ing the Unit­ed States—including attor­neys with cloud access to client information—could have their dig­i­tal devices sub­ject­ed to search with­out a war­rant.

Third­Cer­tain­ty asked two attor­neys who fol­low inter­na­tion­al pri­va­cy issues close­ly to put this devel­op­ment into con­text. Here is what Edward J. McAn­drew, part­ner and co-chair of Bal­lard Spahr’s pri­va­cy and data secu­ri­ty group, and Daniel B. Gar­rie, exec­u­tive man­ag­ing part­ner at Law & Foren­sics, had to share:

3C: What are the main dri­vers of the dra­mat­ic spike in elec­tron­ic media search­es at U.S. bor­der cross­ings?

Daniel B. Gar­rie, Law & Foren­sics exec­u­tive man­ag­ing part­ner

Gar­rie: Most like­ly a direc­tive from Pres­i­dent Oba­ma (pri­or to 2017,) as well as a gen­er­al increase in the num­ber of elec­tron­ic devices that peo­ple are car­ry­ing with them. Bor­der agents have the legal right to search phys­i­cal lug­gage, and that right has been expand­ed to dig­i­tal lug­gage as well. Elec­tron­ic media car­ries a trea­sure trove of infor­ma­tion about the trav­el­er, and can be far more infor­ma­tive to search.

McAn­drew: There had to have been a change in pol­i­cy with­in the gov­ern­ment. We’re talk­ing about efforts to secure the bor­ders against ter­ror­ism threats, and about child exploita­tion and all man­ner of crime. These dig­i­tal devices are incred­i­ble repos­i­to­ries of infor­ma­tion, not only about the indi­vid­u­als who car­ry them, but all of the oth­er indi­vid­u­als to whom they are net­worked. So they are incred­i­bly rich and com­pre­hen­sive sources of evi­dence.

3C: Do you expect these search­es to accel­er­ate under the Trump admin­is­tra­tion?

McAn­drew: This will absolute­ly become much more of an issue, and I’ll tell you why—the num­ber of peo­ple trav­el­ing is going to increase, and the num­ber of devices that have infor­ma­tion in them that would be of inter­est to gov­ern­ment agents is going to con­tin­ue to increase. Also, the new admin­is­tra­tion is very focused on immi­gra­tion-relat­ed issues, nation­al secu­ri­ty and on coun­tert­er­ror­ism.

Gar­rie: In Feb­ru­ary alone, there were 5,000 devices searched. The Trump admin­is­tra­tion has shown a high degree of con­cern for our bor­der secu­ri­ty, and I expect that the num­ber will only con­tin­ue to grow as bor­der offi­cials take advan­tage of their right to search elec­tron­ic media.

3C: Will oth­er nations fol­low the Unit­ed States and begin inten­si­fy­ing elec­tron­ic media search­es?

Gar­rie: I expect oth­er nations will also begin inten­si­fy­ing their elec­tron­ic media search­es, espe­cial­ly as search agents are now able to extract con­tact lists, trav­el pat­terns and oth­er data from phones very quick­ly. They are also able to foren­si­cal­ly search devices, despite pass­word pro­tec­tion or encryp­tion. It is a high­ly effi­cient way of learn­ing about trav­el­ers.

Edward J. McAn­drew, Bal­lard Spahr’s pri­va­cy and data secu­ri­ty group part­ner and co-chair

McAn­drew: Cer­tain coun­tries will, but indi­vid­ual pri­va­cy is viewed very dif­fer­ent­ly in oth­er parts of the world. In Europe, for instance, there are much stronger indi­vid­ual pri­va­cy rights, but in places like Asia and Chi­na, or cer­tain­ly even in Rus­sia, pri­va­cy rights are sub­or­di­nate to the inter­est of the state. I would expect that the Unit­ed States would not be the only coun­try that is using this as anoth­er means of mass dig­i­tal sur­veil­lance.

3C: What should be best pri­va­cy prac­tices for com­pa­ny execs and pro­fes­sion­al ser­vices folks who rou­tine­ly cross bor­ders with access to sen­si­tive cor­po­rate data?

McAn­drew: That’s real­ly a question—particularly for attor­neys, or any­one in pos­ses­sion of con­fi­den­tial information—about whether that data tru­ly needs to be on the device at the time of trav­el, because it can be sub­ject to search and seizure. In the Unit­ed States, the Fourth Amend­ment doesn’t nec­es­sar­i­ly require that that search be con­duct­ed pur­suant to prob­a­ble cause, or even a rea­son­able sus­pi­cion of wrong­do­ing.

Gar­rie: Don’t car­ry your clients’ sen­si­tive data with you. Also, do not try to encrypt or lock your device to pro­tect the data, as the agents have sophis­ti­cat­ed tech­nol­o­gy to break through those bar­ri­ers.

3C: Any­thing else?

McAn­drew: It was just two and half years ago, in Riley v Cal­i­for­nia, that the Supreme Court first decid­ed that indi­vid­u­als have a rea­son­able expec­ta­tion of pri­va­cy on their cel­lu­lar phones. The low­er courts now are just begin­ning to grap­ple with the legal issues around bor­der search­es. The bor­der search excep­tion is one of the excep­tions to the war­rant require­ment. So the law is way behind, and bor­der search law, espe­cial­ly, is way behind.

More sto­ries relat­ed to pri­va­cy:
With no glob­al stan­dard for data pri­va­cy, laws out­side U.S. dif­fer in scope
Lap­top ban cre­ates skep­ti­cism about U.S. credibility—and that’s a dan­ger­ous threat
Fair or foul? New foren­sics tools raise pri­va­cy con­cerns


Posted in Data Privacy, Featured Story