NZ Customs Can Inspect Your Digital Devices at any Airport

6-minute read

Reporter:  The new Customs and Excise Bill means Customs will no longer be able to demand that people entering the country hand over the passwords to their devices without reasonable cause. Although, is that a change? 

We’ll find out, speaking to Tech Liberty founder and New Zealand Council for Civil Liberties chairman, Thomas Beagle. There seems to be some confusion about what we believed the law was and what it actually was, as opposed to this law. So what was the law, and what does this bill mean?

Thomas Beagle:  The law didn’t mention anything about handing passwords over, but Customs decided that they had that power anyway. So they already have been doing that.

This law brings in a new authority for them to penalise people for not handing over the passwords but has been cut down from the original Customs demand, which they wanted carte blanche .

Reporter:  So is it a good tweak, a good compromise, between privacy invasion and the need for security?

Thomas Beagle:  I don’t really think so. I don’t see that Customs actually needs this power at all, and I think there are some real practical limitations on how it can be used.

Reporter:  So who decides what reasonable cause is?

Thomas Beagle:  That’s one of the problems. They can only do it for relevant offences, which means to do with importing forbidden goods . There’s nothing sort of in the wider security needs or anything of that sort. And also, there’s no oversight or auditing of when they do it. So they can say they’ve got reasonable cause; you can’t ask for any proof of that and you can’t follow it up afterwards.

Reporter:  So, therefore, if they say to me, “What’s the password to your phone?” Can’t I say no?

Thomas Beagle:  Not really, no. There’s no way to prove it. And if you don’t give it to them, then you can get a $5,000 fine for it.

Reporter:  So, in effect then, they have got carte blanche.

Thomas Beagle:  That’s how I see this law as being written, yes. But there’s also all the practical issues as well. I mean, if they ask for a password and you don’t have that password, for example, how are you going to prove that you don’t have it?

Reporter:  Aren’t terrorists or pornographers simply moving with the times, using the cloud rather than carrying offending material with them?

Thomas Beagle:  I think that bringing up terrorism is a mistake. This law is specifically designed not to allow it to be used for tracking down people accused of terrorist offences. This law is only for relevant offences, which is importing forbidden goods.

Reporter:  So nothing to do with terrorism. Nothing to do with pornography.

Thomas Beagle:  It could be to do with pornography because that can be a forbidden good. But you’re right, though. You have a point, which is that anyone who’s actually doing serious crimes, or doing serious importing, is not going to try and bring it through on a device.

They’re going to put it up in the cloud on the Internet. They’re going to come through with a nice, clean phone, a nice, clean laptop. And when they get here, they’re going to download it, and Custom’s got absolutely nothing they can do about that.


Reporter:  With the number of tourists increasing basically daily, and we’re getting busier and busier and busier, surely the last thing that Customs would want to do is keep you there longer than possible, so they surely would only use it when they have reasonable cause.

Thomas Beagle:  Customs seems very keen on becoming part of the security apparatus. That’s one of their aims. For example, they’ve been working more with the police then maybe they should be under the law. They’ve been doing searches on behalf of the police.

We see this as them wanting more powers to collect more information for the police because there are this controls at the border. And the police have to go to do this, they would have to go and get a warrant. Customs seem to be thinking that, “Hey, we can just go and pick this information up anyway and pass it on.”

Reporter:  As the good, law-abiding citizen that I am, I’m more than happy that if they stop people at the border and get all the riffraff and the criminals out of the country by checking whatever they can. I don’t care.

Thomas Beagle:  That may be true for you, but other people have other issues as well. For example, that information which they may be taking can include personal information in some. Because, of course, the way we put our lives digitally online, we now have everything on our laptops, everything on our phones, all our personal medical records, etc., etc.

And we have all the communications with other people as well. You may not be involved with political activism, but I am, for example. Does that mean we should be taking this information from laptops and making it available? We do have information to keep private from our government.

Reporter:  Well, what that says to me is that you’ve got information that may be illegal or you may have done something illegal, and therefore, shouldn’t you get caught?

Thomas Beagle:  Well, political activism, of course, isn’t illegal. Political activism is actually part of our freedom of expression and a part of our civil liberties, of course, and I don’t want my government getting that information unreasonably.

Also, more to the point, that this is not about preventing serious crime. This is about the Customs wanting this very, very invasive power to take all our personal information to stop people importing illegal goods . It’s not about stopping serious crime. It’s not about stopping terrorism.

Reporter:  I guess from the point of view is, they’ve got a reasonable suspicion because there are queues and queues of people there coming through. They’ve got a reasonable suspicion that you’re doing something illegal.

They get your password, they look at it, and they find nothing, they move on. So do you think, what, they’re going to take that information, even though that there’s nothing there, and pass it on to someone else?

Thomas Beagle:  They can. I mean, we’ve already seen them doing it against the law, before the Switched On Gardener case, for example, which was about the people who were running that chain of stores which stole hydroponic supplies.

And the Customs were actually deliberately stopping those people when they came into the country. Not so they could get information about what they might be importing, but so that they could get information about all the contacts they had, and then they could pass onto the police.

Now, that was going beyond the law at the time, and we see that as probably an ongoing thing is what they would like to keep on doing. It gives them more power to do it.

Reporter:  So what changes would you like to see to the current set-up?

Thomas Beagle:  I don’t think we need this law. I don’t think we need this ability for Customs to demand passwords. It is unnecessary, and you can’t justify it when you look at the crimes they’re actually meant to be using it for as well.

Reporter:  New Zealand Council for Civil Liberties chairman, Thomas Beagle. Thank you for your time.

Source:  NBR

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