Digital Border Searches: New Zealand's Updated Customs And Excise Act

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As of the 1st of October 2018, New Zealand’s updated Customs and Excise Act comes into affect bringing with it several large 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”) with no justification or oversight required.

Password protecting devices or encryption are also ineffective, as 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 likely 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 been favored in organized crime due their circumvention of traditional means of tracing finances and these new search powers would aid in the Anti-Money Laundering and Countering Financing of Terrorism Act 2009.

Another argument that can be made in support of the newly extended search powers is that it may also aid in the Copyright Act 1994, specifically for the purpose of preventing the sharing of pirated material. This is in spite of a buried €360k 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 report 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 explains: “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. Even for personal information, 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 similar example is encryption required for academic ethics approval.

Some have gone onto criticize the overreaching powers of customs officers and attributing this to the Five Eyes, a collaboration between Australian, Canadian, Kiwi, British and American intelligence agencies. Recent policy changes in Australia have seen the Australian government require all access to encrypted communications, which includes voice calls, messages and emails. For some this comes as another blow to what is seen as eroding privacy and freedom of speech rights.

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