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.
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?
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.
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.