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SUMMER 2008 Is It ‘1984’ at the Canada/US Boundary? ‘Blank’ Laptops, Pdas to Cross US Border by MIKE BOWERBANK BLAKES LLP a Look Ahead at BCLMA’S Projects This Year

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SUMMER 2008 Is It ‘1984’ at the Canada/US Boundary? ‘Blank’ Laptops, Pdas to Cross US Border by MIKE BOWERBANK BLAKES LLP a Look Ahead at BCLMA’S Projects This Year A $25 Chevron gift card!! ‘You be the judge’ scenarioEnter to Win: bclma Provide a response to our latest – See page 19 for details! British Columbia Legal Management Association topicstopics A NEWSLETTER TO HELP OUR MEMBERS AND PARTNERS KEEP CURRENT ABOUT THE BUSINESS OF LAW SUMMER 2008 Is it ‘1984’ at the Canada/US boundary? ‘Blank’ laptops, PDAs to cross US border BY MIKE BOWERBANK BLAKES LLP A look ahead at BCLMA’s projects this year s Big Brother waiting at the border to confiscate your laptop, Black- ‘Promising developments, exciting Iberry and their data? Well, no... and yes. plans’ underway for BCLMA Under the terms of the US Patriot BY STEPHANIE CORNELL me throughout my professional legal Act, you don’t have to be suspected of BCLMA PRESIDENT career. I feel strongly about protect- anything to have ing and nurturing the wellbeing of your laptop con- t is my pleasure to serve you as this thriving organization. It feels fiscated as you 2008/09 BCLMA President. Many right to continue to give back. cross the border Iof you will know that the As President, I am supported by into or coming BCLMA is dear to me. I have held what is, I’m sure, the largest Ex- from the States. several roles since joining the ecutive Board ever. The So lawyers and Association in 1996. amount of involvement at administrators In the last 12 years, I this level tells me that I traveling to or have led the Facilities and am surrounded by mem- Mike through the United the Marketing subsections, bers who care about the Bowerbank States may well be served as Secretary to the Ex- BCLMA as much as I do. I am subject to searches ecutive Board, and continue to re- proud to be a part of this out- of files and data stored on any and all main involved with our Topics standing team. Further, the associa- electronic devices they have with them. newsletter. tion is at its largest—with 310 mem- Agents working with US Customs The Association has always of- bers representing more than 90 firms. do not need to be suspicious of any fered me endless opportunities to As President, I have already had the wrong-doing to conduct a search; it learn and grow; to meet people and could be random, it could be targeted. network. It has certainly supported Promising Developments: Continued on page 7 Many lawyers travel with propri- Stephanie Cornell talks about the benefits of the BCLMA with two potential members. etary information or confidential files. “The Association has always offered me endless opportunities to What you need to ask your lawyers learn and grow; to meet people and network,” she says. and administrative staff is this: How sensitive is the data traveling with you? Are you comfortable with US federal agents creating a copy of every file, document, picture and e- mail you have, and running forensic searches on your data indefinitely? All things being equal, the average search so far involves seizing a laptop and informing the owner that it will be returned by mail at some later date. In many reports, laptops are never returned. Other searches are less problematic— the owner is sim- Is it ‘1984’? — Continued on page 2 ª TOPICS • SUMMER 2008 • BC LEGAL MANAGEMENT ASSOCIATION • WWW.BCLMA.ORG • MEMBER SERVICES: [email protected] Is it ‘1984’?—Continued from page 1 THE FIRM 2 ply asked to turn on the computer, and the agent simply does a quick search for any suspect information without actually confiscating any- thing. Either way, you should be tak- ing steps to secure your data. So how are law firms responding to this? I talked to the IT professionals at a mid-sized law firm, and they said that their lawyers are given a blank laptop, with just an operating system and some basic applications. To get their files, they connect remotely to the file server and obtain their files that way. When loaner laptops are re- yah-HOO!! turned, all files are deleted. © 2008 Another law firm’s current policy entails informing lawyers of the po- tential risks of the Patriot Act, but it leaves it up to them to take proper GRAHAM MORGAN precautions. A new pending proce- dure for that same firm, however, will going far enough to secure their data. government could take possession change that. Lawyers will be given So what should firms be doing? of all the information stored on a blank loaner laptops and they will Here are some suggestions from the US laptop computer, international trav- have to connect remotely to access Customs and Border Patrol’s website: elers should minimize the amount their sensitive files. of proprietary, privileged, or other- By and large, there is a general 1. Minimize the Risk awareness, but not many firms are In light of the possibility that the Is it ‘1984’?—Continued on page 4 ª DigitalDigital SpeechSpeech ProcessingProcessing ForFor LawyersLawyers Clear and ppreciserecise evidence:evidence: The DiDigtagta didigitalgital portaportableble enablesenables you to spendspend more DigtaDigta moldsmolds thethe familiarfamiliar functionalityfunctionality ofof analoganaalog ttimeime wwithith your clclients...ients... machinesmachines intointo time-savingtimme-saving benefitsbenefits usingusing digitaldigital technology.technology. TheThe transitiontransition can appearappear seamless.seamless. TrueTrrue bonus features likelike full edit,edit, insert,insert, file notification,notificatiion, aandnd even tthehe abilitabilityty ttoo emailemail didictationsctations toto youryour officeofffice areare allall enhancementsenhancements relatedrelated to digitaldigital dictation.dictation. IntegrationIntegration withwith VoiceVoice to Text Syncronet Systems Corp. Suite 200, 1682 West 7th Avenue Digta x420 Vancouver, BC V6J 4S6 604-664-8901 Captured thoughts from the portable can be auto www.syncronet.com transposedtransposed intointo text withoutwithout transcription.transcription. WithWith DragonDragon N aturallyaturally Speaking,Speaking, emailsemails can now bebe voicedvoiced ratherrather thanthan typed.typed. TOPICS • SUMMER 2008 • BC LEGAL MANAGEMENT ASSOCIATION • WWW.BCLMA.ORG • MEMBER SERVICES: [email protected] Wish you had the right tools for your law fi rm’s back-offi ce needs? Your wishes just came true with PCLaw™ Billing & Accounting Software Achieve better business results with integrated law-fi rm tools: • Expedite billing with easy, centralized editing and review • Gain fl exible entry of time and expenses • Intuitively create and print cheques • Drill down on matter balances and reports • Complete payroll securely with ADP® online tools • Accept and process credit cards with PPI™ services • Generate fi nancial and productivity reports • Provide your accountant with a free copy of PCLaw™ for your monthly or year-end review Improve your fi rm’s cash fl ow and profi tability. Order now! www.lexisnexis.ca/pclaw or call 1-800-387-9785, ext. 2 LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under licence. PCLaw is a trademark of LexisNexis Practice Management Systems Inc. Other products or services may be trademarks or registered trademarks of their respective companies. © 2008 LexisNexis Canada Inc. All rights reserved. Is it ‘1984’? — Continued from page 2 turned and against the possible 4. Cooperate, but don’t consent disclosure of confidential infor- If agents confiscate an employee’s 4 wise confidential information they mation. Is it ‘1984’?—Continued on page 5 ª store on the laptop during their trip. 2. Be Prepared THE REACTION TO ‘US VS ARNOLD’ These searches can happen to any- “Our amicus brief and the lower court opinion... say that the government one and when the US government must also have some cause to search laptops. The Ninth Circuit panel reject- seizes a computer, it may take time ed our argument [on April 22 in the lead case on the topic, US vs. Arnold] for the computer or other hard- that the privacy invasion resulting from searching computers is qualitatively ware to be returned. If a computer different from, and requires higher suspicion than, searching luggage or oth- contains information (documents, er physical items. presentations, contact information, “The opinion is almost certainly wrong to classify laptop searches as no etc.) that the traveler will need, the different from other property searches. Fourth Amendment law constrains po- company should maintain a back- lice from conducting arbitrary searches, implements respect for social priva- up to replace the materials in the cy norms, and seeks to maintain traditional privacy rights in the face of tech- event of a border seizure. nological changes. This Arnold opinion fails to protect travelers in these traditional Fourth Amendment ways. 3. Be Insured “The defendant has time to petition the Ninth Circuit to rehear the case en Many companies have insurance banc, and the Court might agree to do so. The panel included a District Court policies that cover the loss of com- judge sitting by designation. Additionally, the opinion sets up Arnold’s re- puters and electronically stored liance on cases protecting highly private areas like the home from suspicion- information. Border seizures of less searches as a straw man, and then knocks the argument down by point- laptop computers represent an- ing out ‘the simple fact that one cannot live in a laptop.’ other way in which a company “This strained and strange argument suggests that Arnold is not the last can suffer such losses. By negoti- word on border searches of laptops. In the meantime, travelers carrying their ating to have a policy cover these corporation’s trade secrets, personal emails, or health and financial informa- seizures, companies can protect tion are at risk of arbitrary and capricious fishing expeditions at the border.” themselves against the cost of re- —Electronic Frontier Foundation, <http://www.eff.org> placing computers that are not re- TOPICS • SUMMER 2008 • BC LEGAL MANAGEMENT ASSOCIATION • WWW.BCLMA.ORG • MEMBER SERVICES: [email protected] Is it ‘1984’? — Continued from page 4 wait until someone actually has this Brother is watching..
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