In 1996, the Customs Act was passed. This Act gave front line officers their powers to protect our borders, including powers to search people when they cross the border.

Up until now, Customs has interpreted that Act as giving officials authority to search electronic devices without reaching any legal threshold. We weren’t so sure about that, and now that the Act is being modernised for the 21st century we need to examine it in the context of the significant technological and social change that has occurred since.

20 years of technological change

In 1996, our family computer was a 386. The floppy disks it took were actually floppy, and it had a 100MB hard drive.

In 2016, we don’t have one single family computer. I have a tablet, and an old netbook for coding on. My wife has a laptop. My wife and I have smartphones. My phone has apps that would not fit on my old 386’s hard drive.

Parliament, in 1996, could not have predicted the amount of technological change that would occur in the next 20 years. Nor could they have predicted the central role that smartphones play in some of our lives, small black-mirrored talismans that carry our digital life: where we’ve been, who we know, what we’ve seen.

We are not the only country grappling with these issues. A recent District Court case in the United States assessed two electronic searches carried out by United States Customs and Border Protection. They found the privacy interest was so significant in the case of a forensic search that it couldn’t be considered routine – and importantly, that they needed to show ‘particularised suspicion’ before carrying out a search of this nature.

We’ve argued that use of this power in New Zealand should be subject to a legal threshold. We’ve said this as part of their public consultation process, and we said it again to Cabinet (paras 113-119) when they considered Customs’ call to keep the status quo. We said, and Cabinet agreed, that:

“The exercise of any search and surveillance, or seizure powers is intrinsically invasive and therefore gives rise to significant privacy issues. Any new coercive state powers must be proportionate, justifiable and subject to clear and principled controls in legislation.”

Customs shouldn’t be able to search your laptop or smartphone unless they have a reasonable belief or suspicion that you’re carrying something you shouldn’t be. It’s important that they can protect our borders, but this does not provide carte blanche to look at anyone’s personal – sometimes sensitive or privileged – information at will. 

Image credit: totumweb via Flickr