Daily News Thursday, March 13, 2008

No Privacy for Travelers?

By: Emma Warrillow, Emma Warrillow & Associates Inc.

Do you travel to the US on business? Do you take your laptop or PDA with you? Some recent incidents have made me sit up and take notice. In fact, despite the need for it, I am not sure I'll be taking my laptop the next time I travel over the border.

Apparently the US Customs have claimed the right to seize and copy information travelers carry into the United States. In the name of national security, they are asserting the right over private information contained on personal and corporate laptops. Apparently no cause is necessary for them to target travelers – any of us could be selected at random. Of course, those of Islamic descent probably have even more to worry about.

What do you have on your laptop? Although they claim that they are only looking for suspected ties to terrorism or other illegal activity, where does that stop? Are they going to search for illegally downloaded movies or songs? Check out with Web sites you have visited? Search your contacts for known links to terrorism?

And what do they do with other information they discover? What is to stop a customs agent from using information about a pending merger to profit on the stock market? Or to blackmail individuals? How can we be sure carelessly stored information about individuals and companies is not accidently made public?

Examples recently reported in the Washington Post include laptops being seized - not returned for days or months - and their contents being copied. Although, I'd hate to be without my laptop for any length of time, it's the copying is what worries me the most. What happens to the data that has been seized? Where is it kept? For how long? How is it destroyed? We've all read the horror stories about computers being cracked and identities stolen - wouldn't this data be a prime target?

The CBC reports that a spokesperson for The United States Customs and Border Protection Agency says: "It is not the intent of CBP to subject travelers to unwarranted scrutiny…. Laptop computers may be subject to detention for violation of criminal law such as if the laptop contains information with possible ties to terrorism, narcotics smuggling, child pornography or other criminal activity. CBP Officers adhere to all requirements to protect privileged, personal and business confidential information."

As a consultant, I have confidential information on my electronic devices. I have proprietary business information about my client's businesses and in some cases I have information about their clients.

I am also required by my clients to sign legal documents and comply with their privacy policies. These policies include committing that I will not share the information they provide to me with anyone. While 'being required by law' is typically excluded from these contracts, the spirit of them is that I will not share any information with anyone. If I knowingly travel with this information on my hard drive, am I contravening these agreements? Are the US government's assurances sufficient?

Some companies are altering their travel policies to reflect this concern. I recently heard a lawyer, Lou Brzezinski, on CBC radio. He revealed that his firm, Blaney McMurtry in Toronto, requires that their professionals now travel only with "blank laptops". All information is wiped from their laptop hard drives before they cross the border. When they reach their destination, the information they require is downloaded from the Internet. Despite safety concerns about the Internet, they feel the risk is worth it.

Lawyers have an even greater concern as they are not only subject to privacy laws but also have a duty to protect the confidential nature of their solicitor-client relationships. In fact, just having the name of a client on their PDA and letting someone see it, may contravene this. Many of us also feel strongly that client lists are confidential information and should only be divulged with the agreement of our clients.

It appears that there is little you can do to protect yourself. Brzezinski cited an example of a Canadian businessman, Sebastien Boucher, who refused to provide the password to a laptop, claiming that it was property of his company and therefore not his private domain. This case went to grand jury to force him to provide his password – the grand jury complied and ordered him to do so. However, it has since been overturned under the guise that compelling Boucher to provide it would violate his Fifth Amendment right against self-incrimination.

There are a number of lawsuits currently in progress and action groups attempting to force clarity on this policy. But for now, I am going to think long and hard about what I take over the border.

Emma Warrillow, runs Emma Warrillow & Associates Inc. (www.emmawarrillow.com) and helps companies articulate their analytic strategies and make the most of their customer data. She can be reached at emma@emmawarrillow.com

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