Australia and New Zealand have enacted new laws in 2018 that give border agents the right to demand that travelers entering these countries hand over passwords for their digital devices. This most recent development contributes to a global trend toward the unwarranted search and seizure of devices, raising critical questions about individual privacy, data management, consent, and surveillance.
Imagine returning home after a long flight, exhausted and red-eyed. You are just waiting for your baggage after getting through the SmartGate when a customs officer stops you and demands that you unlock your smartphone and hand it over, offering no reason. Do you know your rights?
In Australia and New Zealand, customs officers now can legally search not only your personal baggage, but also the contents of your consumer electronics (CE). It does not matter whether you are a citizen or visitor or if you are crossing a border by air, land, or sea.
New laws that came into effect in New Zealand on 1 October 2018 give border agents:
…the power to make a full search of a stored value instrument (including power to require a user of the instrument to provide access information and other information or assistance that is reasonable and necessary to allow a person to access the instrument [New Zealand Customs and Excise Act 2018].
Those who do not comply face possible prosecution and NZ$5,000 in fines. Border agents have similar powers in Australia and elsewhere.
In the exercise of the power to examine goods, the officer of Customs may … do, whatever is reasonably necessary to permit the examination of the goods concerned… if the goods are a document–reading the document either directly or with the use of an electronic device… [Australian Customs Act 1901, Section 186].
In Canada, hindering or obstructing a border guard could cost you up to CAD$50,000 or five years in prison .
An Increasing Trend
Most countries currently do not publish data on CE searches, but there is a trend of increased instrument search and seizure at U.S. borders. The number of electronic device inspections between 2015 and 2016 grew fivefold in the United States, bringing the total number to 23,000 in that year . In the first six months of 2017, the number of searches was already in the vicinity of 15,000 . The question is: Why is this increase occurring?
In some of these instances, people have been threatened with arrest if they did not agree to provide secret passwords. Others have been charged . In cases in which travelers did comply, the individuals lost sight of their devices for a short time period, or devices were confiscated and returned days or weeks later with no explanation whatsoever (see Table 1 for selected examples). As has been noted, the consequences include agencies holding devices for long periods of time, violence, and criminal prosecution for refusal to comply.
Table 1. Examples of selected incidents by year.
Searching one’s data also extends beyond the physical device. In 2016, the United States introduced an additional question on online visa application forms, asking people to divulge social media usernames and other indicators of an “online presence.” Promoted as a means to “spot anybody with links to terrorist groups,” [14, paragraph 7] divulging one’s social media information is technically optional, but refusal may open travelers up to “lengthy questioning from border patrol agents” [14, paragraph 11].
Who Will Guard the Guards Themselves?
Border agents may have a legitimate reason to search an incoming passenger, such as if a passenger is suspected of carrying illicit goods from abroad, but accessing a smartphone is arguably different from searching luggage. First, the amount of personal information retrieved from a smartphone far exceeds any information gathered from a physical search. A recent plaintiff’s brief for Lazoja v. Nielsen in the United States (summarized in Table 1) claims “Seizing and searching a cell phone is unlike seizing or searching other property. Cell phones are a uniquely intimate and expansive repository of our lives…they monitor and log much of our movement, activity, and even our thinking in real time… losing a phone essentially cuts one off from modern society” . In June 2018, the U.S. Supreme Court ruled in Carpenter v. United States that the warrantless acquisition of cell phone data is a violation of the Fourth Amendment’s right to be secure against unreasonable search and seizure, arguing that individuals have the right to protect not only their property, but their privacy.
The number of electronic device inspections between 2015 and 2016 grew fivefold in the United States, bringing the total number to 23,000 in that year.
Smartphones carry innermost thoughts, intimate pictures, sensitive workplace documents, and private messages.
Second, search and seizure of a smartphone may compromise not only individual privacy, but also the privacy of anyone who has corresponded with the person whose device was seized. Smartphones carry innermost thoughts, intimate pictures, sensitive workplace documents, and private messages.
Searching electronic devices at borders can be likened to when police intercept private communications. In such cases in Australia, police require a warrant to conduct the interception . That means there is oversight, and that there is a mechanism in place to guard against abuse, but such oversight is absent at the border. Also, the suspected crime must be proportionate to the action taken by law enforcement. Therefore, citizens also need to ask themselves why police at the border have greater powers than general law enforcement officers on the street.
Asymmetric Searches and Citizen Response
Travelers armed with knowledge about their rights and responsibilities have provided a framework for responding to the increasing likelihood of a request or demand to search devices. First, not all requests for the search of a device are mandatory. If you are not sure about your right to refuse, ask to speak to a lawyer and do not say anything that might incriminate you. Stay calm and do not argue with the border force officer.
Second, take steps to protect your privacy prior to travel through data-management strategies. Some possibilities include switching on two-factor authentication, which requires a password on top of your passcode, and storing sensitive information on the cloud on a secure server while are traveling, accessing it only as needed. You might also consider using an older smartphone that is empty of contents while you travel.
We know only what the Department of Home Affairs has noted about being stopped at the Australian border:
Risk assessment techniques are employed to identify which passengers will be examined or searched. All movements across the border are screened by the Department using a range of intelligence, targeting and profiling techniques. Illicit cross-border activity may be identified and intercepted as a result of profiling, specific information received from a variety of sources, operational activity or a combination of these.
What are these intelligence tools and targeting and profiling techniques? If we do not ask the vital questions now and assert our right to privacy, might we be subjected to greater intrusions? Ultimately, these unsettling incidents at our borders expose just one facet of potential rights violations, and require us to think seriously about the future of human rights in the digital age.
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Citation: Katina Michael, Rebecca Monteleone, “Consumer Electronic Instrument Search and Seizure at International Borders: New Laws Allow Border Agents to Demand Passwords for Digital Devices”, IEEE Consumer Electronics Magazine, Vol. 8 No. 2 , March 2019, 5 February 2019, pp. 90 - 93.