Wednesday, February 13, 2008

Protecting Your Trade Secrets: Avoiding A Corporate Cavity Search

With the increased number and frequency of random searches at the US/Canada border, business travellers need to consider how they could be affected. Can a border guard demand to review your laptop and blackberry files? Does US Customs owe you a duty of confidentiality?

The notion that a random search of your blackberry could be considered reasonable seems incredible. And yet, it's happening regularly, thanks to the vigilance of Homeland Security. A Quebec man who refused recently to provide his password to border guards found his laptop impounded, and a grand jury convened to compell disclosure of the password. A judge ultimately overruled the impoundment, and there are apparently a handful of other cases which are re-considering the issue of what constitutes reasonable search and seizure in the context of national security.

Until the issue is settled, if ever, practical steps need to be considered. For example, in Toronto, a local law firm has adopted the policy of stripping its laptops and blackberries of all data prior to crossing the border.

Entrepreneurs - you know which of you I'm referring to - think of how much you keep of your business currently resides in your laptop. Think also of how many trade secrets and pre-patent items are sitting there, going with you to your meeting with Fred Wilson (although really, if you're going to see Fred, you should go to see Rick or Barry down the block first. Sometimes, they have cookies.). Are your trade secrets compromised if they are "published" to US Customs and/or the Department of Homeland Security? Are your customers compromised if their data is copied? Apparently, there is currently no law requiring either department to maintain the confidentiality of information they review as part of a random search (although I understnad that they have adopted "procedures"). I expect in time this will improve, but for the moment, consider the border as another place you need firewall protection.

Thanks to Blaney McMurtry for raising the flag.

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