Customs to fine travellers who don't hand over device passwords

Customs now has the power to fine travellers who refuse to hand over their phone or laptop passwords.

The Customs and Excise Act 2018 came into effect on Monday. While the previous law gave Customs the right to demand to see any electronic devices, it didn't say travellers had to also provide their passwords to unlock those devices. 

Failing to comply with the new legislation could result in a $5000 fine.

Customs spokesperson Terry Brown told RadioLIVE Customs officers must have "reasonable cause" to suspect a traveller is involved in criminal acts in order to carry out a digital search.

"That may be a range of things involving child exploitation, drug smuggling, terrorist activity and the like, and on that basis we can ask you to provide access to your phone through whichever means, fingerprint or password."

Before getting to the point of a digital search, the traveller would likely have aroused suspicion because of dog indications, previous travel or unsatisfactory responses to questions from border security agents.

In a preliminary search Customs officials would search files stored on the device, and would not investigate anything the person may have stored in the Cloud. However if they believe the person to be guilty they will commence a "forensic search" which would go more in-depth, including Cloud storage.

Mr Brown says uploading incriminating files to the Cloud and then deleting them from the device might defeat a preliminary search, but wouldn't fool a forensic one.

He says if someone does refuse to allow officers access to their device, that device could then be confiscated.

"We would detain the phone because you didn't allow us access to it on the basis that the failure to divulge that password gives us reasonable cause to believe that the device contains relevant evidential material."

He says the change doesn't mean more people will be subjected to digital searches, and claims previous laws granted Customs officials greater access to travellers' devices.

"We did 537 preliminary searches of devices in 2017, less than 0.2 percent of arriving passengers had their bags examined," he says.

"When you're looking at a total of 17 million passengers arriving and departing New Zealand, we're looking at probably less than 0.2 percent of arriving passengers having their bags examined, and of those, probably about 0.5 percent that are subject to an examination of their electronic device."

Privacy Commissioner John Edwards was involved in drafting the legislation and has given the new law his approval.