Media release: Customs new powers an unjustified invasion of privacy
The NZ Council for Civil Liberties is disappointed to see the law allowing Customs to demand people unlock their digital devices coming into effect.
"Modern smartphones contain a large amount of highly sensitive private information including emails, letters, medical records, personal photos, and very personal photos. Allowing Customs to be able to demand the right to examine and capture all this information is a grave invasion of personal privacy of both the person who owns the device and the people they have communicated with." – Thomas Beagle, Chairperson of the NZ Council for Civil Liberties
Any such invasion of privacy should require both an important reason, as well as a suitable process for granting it. We note that the requirements and procedures in this new law are very lightweight, have no oversight, and compare badly to the procedures that must be followed by our Police and intelligence services.
Customs originally demanded to be able to perform these searches without restrictions. The law now says they have to have reasonable cause, but they do not have to prove this before confiscating your device, nor is there a way to meaningfully protest or appeal at the time of confiscation.
"The reality of this law is that it gives Customs the power to take and force the unlock of peoples smartphones without justification or appeal – and this is exactly what Customs has always wanted." – Thomas Beagle.
We don't see any justification for this expansion of their powers (which is really merely a codification of the power that Customs has always baselessly claimed for itself). In theory it is only for "relevant offending" i.e. detecting crimes against the Customs Act. In other words, we're giving Customs access to our entire digital lives so they can possibly stop someone importing a pirated movie or avoiding paying duty.
However Customs has a significant history of using their border search powers on behalf of the NZ Police, as was shown with the Switched On Gardener case, thus performing an end-run around the Search & Surveillance Act. More recently, there is evidence of Customs discriminating against people based on their national origin.
Any professional criminal could easily store their data on the internet, travel with a wiped phone, and restore it once they enter the country. Any criminal who fails to do this would surely pay $5k fine rather than reveal evidence relating to crimes that might involve jail time.
Rather it seems it's going to catch normal law-abiding people who are obliged to give up their personal information or lose their smartphone. It's also going to catch people travelling with their partner's phone who can't unlock it, it's going to catch people with a laptop used by multiple people who can't unlock the files belonging to the other users. It's going to mean that Customs officers can take and snoop through any device they wish to.
We think that this is disproportionate – the imposition on regular law abiding people far outweighs the minor benefits realisable through the use of the power. As such this part of the law can't be justified under the Bill of Rights Act which forbids "unreasonable search and seizure" and it should be removed.
"Demanding people hand over the contents of their smartphones containing personal data for the ostensible purpose of preventing crimes against the Customs Act is grossly excessive and cannot be justified." – Thomas Beagle