Mobile phone border searches: New Zealand's Customs & Excise Act

Travelers to New Zealand may find that more than their luggage is checked by customs officers, with an updated law now enabling the full search of digital devices such as mobile phones for incriminating evidence.

New Zealand’s updated Customs and Excise Act came into affect on October 1, bringing with it several key changes for the search powers of customs agents. Digital devices, which include mobile phones, laptops and external media, may now be searched at full discretion of a customs officer (by extension of “reasonable cause”).

Customs officers also have “the power to require a user of the device to provide access information and other information or assistance that is reasonable and necessary”. Failure to comply may see travelers imparted with a hefty $5000 NZD fine.

It is thought that one of the key motives behind this new law is to prevent the transportation of a “stored value instrument”, which extends to debit cards and digital currencies such as crypto currency (e.g. BitCoin). Crypto currencies have recently been favored in cases of organized crime due their circumvention of traditional means of tracing finances. The new search powers would aid in the Anti-Money Laundering and Countering Financing of Terrorism Act 2009.

The expanded search powers may also aid the Copyright Act 1994, specifically for the purpose of preventing the sharing of pirated material. This is in spite of a study by the European Union which concluded that “In general, the results do not show robust statistical evidence of displacement of sales by online copyright infringements”.

As reported by RadioNZ, Privacy Commissioner John Edwards commented that: “There’s a good balance between ensuring that our borders are protected … and [that people] are not subject to unreasonable search of their devices.” Furthermore he explained: “You know when you come into the country that you can be asked to open your suitcase and that a Customs officer can look at everything in there.”

It’s currently unclear how these unrestricted search powers may work when an encrypted device contains sensitive information and may directly conflict with the Privacy Act 1993. Part 4 “Good reasons for refusing access to personal information” states several acceptable reasons for not sharing personal information, including security, trade secrets, medical details and journalistic integrity. Another example is encryption required for academic ethics approval.

The expanded powers of customs officers add to Five Eyes, an intelligence alliance between Australian, Canadian, Kiwi, British and American agencies. Recent policy changes in Australia have seen the Australian government require all access to encrypted communications, which includes voice calls, messages and emails.

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