Under the Customs and Excise Act 2018, which came into force this week, officials will be able to demand travelers unlock any electronic device so it can be searched. Anyone who refuses can face prosecution and a fine of up to $3,200 (5,000 NZD).
Officials can also retain devices and potentially confiscate them from travelers who refuse to allow a search at the border.
The New Zealand Council for Civil Liberties (CCL) described the new law as a “grave invasion of personal privacy of both the person who owns the device and the people they have communicated with.”
“Modern smartphones contain a large amount of highly sensitive private information including emails, letters, medical records, personal photos, and very personal photos,” the group’s chairman Thomas Beagle said in a statement.
“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.”
Privacy Foundation New Zealand said members had expressed concern to the government during the consultation process about the retention of passwords by border officials and the safeguards on searches of devices.
A spokeswoman for New Zealand Customs said the change to the law was necessary as “the shift from paper-based systems to electronic systems has meant that the majority of prohibited material and documents are now stored electronically.”
Invasion of privacy
While customs officials in multiple countries are permitted by law to search travelers devices, New Zealand is the first country to introduce a fine for those who refuse to hand over passwords or pin numbers to enable this.
Foreign nationals traveling to the US who refuse to do so can be denied entry if deemed to be “non cooperative” with border officials, and US citizens can be detained and their devices confiscated if they refuse to hand over passwords (though as the case of the San Bernardino shooter’s phone showed, it can be very difficult and expensive to break into a device without them).
Both the Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU) have sued the US government to try and force officials to get a warrant based on probable cause before conducting searches of electronic devices at the border.
The New Zealand Customs spokeswoman said the number of electronic devices examined is “very low.” She added that of the 14 million travelers risk assessed and processed in 2017, “only 537 devices were examined.”
According to CCL, New Zealand Customs had originally demanded they be able to perform device searches without restrictions, but lawmakers required that they have “reasonable cause.” However, the group added the restrictions fell short of those placed on the police and intelligence services, and did not require reasonable cause.
Moreover, the civil liberties organization said the law could easily be avoided by those with something to hide and would primarily effect innocent travelers.
“Any professional criminal could easily store their data on the internet, travel with a wiped phone, and restore it once they enter the country,” the CCL statement said. “Any criminal who fails to do this would surely pay (a $3,200) fine rather than reveal evidence relating to crimes that might involve jail time.”