Customs wants the right to demand people disclose passwords for laptops, smartpones and other gadgets as they enter NZ, even if it has no warrant — and the threat of up to three months' jail if they refuse.
Customs wants the right to demand people disclose passwords for laptops, smartphones and other gadgets as they enter New Zealand even if it has no warrant – and the threat of up to three months' jail if they refuse.
The agency's call comes in a discussion paper on proposed changes to the Customs and Excise Act (1996).
Customs says it wants to move with the times and align our law with "comparable countries, such as Australia, the US, Canada and the UK." It sees inspecting an electronic device potentially becoming part of a routine bag search.
Greens ICT spokesman Gareth Hughes says "These proposed new powers are unnecessary and an affront to Kiwis’ privacy. Customs can already access travellers’ electronic devices if they get a warrant, such as for anti-money laundering and anti-terrorism purposes or other suspected criminal activities. There needs to be a clear threshold and due process for law enforcement agencies accessing private electronic devices. No agency should be able to demand access to private information without a very good reason."
Bad for business
Labour's Clare Curran notes Customs also wants people to hand over keys to encrypted files without a warrant.
She says that's bad for business.
“This is another example of New Zealand falling into line with its Five Eyes partners, the US, Australia, Canada and the UK and is another step toward the erosion of civil liberties and privacy," she says.
“It’s also a disturbing new piece of evidence that encryption as a business model is under threat. It could lead to stifling innovation of new businesses which provide encryption services and even dissuade people from travelling to a country with such draconian laws."
Practical concerns
Tech Liberty co-founder and NZ Council for Civil Liberties chairman Thomas Beagle is also concerned about privacy implications. "This is particularly a problem when there is solid evidence that Customs has already been doing searches at the border at the request of the Police rather than for the customs purposes enabled by law," he says.
He also raises practical issues.
"We think the proposal is not going to achieve what Customs want it to, and there is too much risk of innocents being caught up in it," he says.
"Anyone with criminal digital content is going to store it on Dropbox or similar, travel with a clean laptop and then download the files when they get here.
"Or if they are silly enough to travel with sensitive files, how high would the penalty be for not handing over the password have to be to make it worth while giving it up?"
He adds that if someone refuses to hand over the combination for a lock on a brief case, that's only a shor- term problem. A Customs officer can literally force the issue with a hammer and chisel.
But if someone is asked for the password for a laptop, they can always weigh the threat of three months' jail for not handing it over versus the penalty they could face for, say, having evidence of money laundering or participating in a child porn ring on their computer, Mr Beagle says. The problem for a Customs officer is that they have no way of telling if someone is refusing to hand over a password out of sheepishness, or if there is major offending involved. It could be that someone has simply forgotten their password in the stress of the situation.
"As for those worried that otherwise people might escape, we do have a policeforce with extensive powers granted by the Search & Surveillance Act (2012)," he says. Additionally, Customers already has the right to inspect electronic devices under the d Countering Financing of Terrorism Act (2009).
"But of course it would have to have probable cause and get permission from a judge," he says.
The Tech Liberty co-founder prefers that route. "Customs has long been suspected of exceeding its powers to do searches on behalf of the Police," he claims.
