It is not unique to New Zealand. The law has been in place for a long time - it has just been revamped. The only new thing is the introduction of potential fines.
From 2013
https://fyi.org.nz/request/1357-grounds-for-search-of-electronic-devices-at-the-borderPrevious legislation that provided those powers were : Part 12 of the Customs and Excise act 1996 and the Search and Surveillance act 2012
The 2018 act specifically states:
However, there is no power under subsection (2) to search material (of any kind) that is accessible from the device but is not stored in the device
228 Data in electronic devices that are subject to control of Customs
(1)
This section applies to any electronic device—
(a)
that is subject to the control of Customs; or
(b)
that a Customs officer has reasonable cause to suspect is subject to the control of Customs.
(2)
Data in the device may be searched in accordance with the following powers:
Powers if threshold met
(a)
the power to make an initial search if a Customs officer has reasonable cause to suspect that—
(i)
a person in possession of the device has been, is, or is about to be involved in the commission of relevant offending:
(ii)
an importer or exporter of a device (other than a person to whom subparagraph (i) applies) has been, is, or is about to be involved in the commission of relevant offending:
(iii)
an unaccompanied device has been, is, or is about to be used in the commission of relevant offending and the importer or exporter cannot be reasonably identified or located:
(b)
the power to make a full search if a Customs officer has reasonable cause to believe that evidential material relating to relevant offending is in the device:
(c)
the power to require a user of the device to provide access information and other information or assistance that is reasonable and necessary to allow a person exercising a power under paragraph (a) or (b) to access the device:
Powers with no threshold
(d)
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):
(e)
the power to make a full search of unaccompanied electronic storage media that is an optical disc imported other than for personal use for the purpose of determining whether it contains any pirated copy within the meaning of Part 7 of the Copyright Act 1994.
You can also be refused entry, have your Visa withdrawn and be detained.
Canada - The Customs Act gives CBSA the ability to search your laptop or phone.
https://www.priv.gc.ca/en/privacy-topics/public-safety-and-law-enforcement/your-privacy-at-airports-and-borders/If your laptop or mobile device is searched, it should be searched in line with this policy and, in that context, you will likely be asked to provide your password. If you then refuse to provide your password, your device may be held for further inspection. According to the policy, officers may only examine what is stored within a device, which includes, for example, photos, files, downloaded e-mails and other media. Officers are advised to disable wireless and internet connectivity, limiting access to any data stored external to the device, for instance, on social media or in a cloud.
There is a broad range of existing legislation that could compel a person to disclose their decryption keys.
PART VI
Enforcement
Powers of Officers
Search of the person
98 (1) An officer may search
(a) any person who has arrived in Canada, within a reasonable time after his arrival in Canada,
(b) any person who is about to leave Canada, at any time prior to his departure, or
(c) any person who has had access to an area designated for use by persons about to leave Canada and who leaves the area but does not leave Canada, within a reasonable time after he leaves the area,
if the officer suspects on reasonable grounds that the person has secreted on or about his person anything in respect of which this Act has been or might be contravened, anything that would afford evidence with respect to a contravention of this Act or any goods the importation or exportation of which is prohibited, controlled or regulated under this or any other Act of Parliament.
Marginal note:Person taken before senior officer
(2) An officer who is about to search a person under this section shall, on the request of that person, forthwith take him before the senior officer at the place where the search is to take place.
Idem
(3) A senior officer before whom a person is taken pursuant to subsection (2) shall, if he sees no reasonable grounds for the search, discharge the person or, if he believes otherwise, direct that the person be searched.
Marginal note:Search by same sex
(4) No person shall be searched under this section by a person who is not of the same sex, and if there is no officer of the same sex at the place at which the search is to take place, an officer may authorize any suitable person of the same sex to perform the search.
Examination of goods
99 (1) An officer may
(a) at any time up to the time of release, examine any goods that have been imported and open or cause to be opened any package or container of imported goods and take samples of imported goods in reasonable amounts;
(b) at any time up to the time of release, examine any mail that has been imported and, subject to this section, open or cause to be opened any such mail that the officer suspects on reasonable grounds contains any goods referred to in the Customs Tariff, or any goods the importation of which is prohibited, controlled or regulated under any other Act of Parliament, and take samples of anything contained in such mail in reasonable amounts;
(c) at any time up to the time of exportation, examine any goods that have been reported under section 95 and open or cause to be opened any package or container of such goods and take samples of such goods in reasonable amounts;
(c.1) at any time up to the time of exportation, examine any mail that is to be exported and, subject to this section, open or cause to be opened any such mail that the officer suspects on reasonable grounds contains any goods the exportation of which is prohibited, controlled or regulated under any Act of Parliament, and take samples of anything contained in such mail in reasonable amounts;
(d) where the officer suspects on reasonable grounds that an error has been made in the tariff classification, value for duty or quantity of any goods accounted for under section 32, or where a refund or drawback is requested in respect of any goods under this Act or pursuant to the Customs Tariff, examine the goods and take samples thereof in reasonable amounts;
(d.1) where the officer suspects on reasonable grounds that an error has been made with respect to the origin claimed or determined for any goods accounted for under section 32, examine the goods and take samples thereof in reasonable amounts;
(e) where the officer suspects on reasonable grounds that this Act or the regulations or any other Act of Parliament administered or enforced by him or any regulations thereunder have been or might be contravened in respect of any goods, examine the goods and open or cause to be opened any package or container thereof; or
(f) where the officer suspects on reasonable grounds that this Act or the regulations or any other Act of Parliament administered or enforced by him or any regulations thereunder have been or might be contravened in respect of any conveyance or any goods thereon, stop, board and search the conveyance, examine any goods thereon and open or cause to be opened any package or container thereof and direct that the conveyance be moved to a customs office or other suitable place for any such search, examination or opening.
You can also be refused entry, have your Visa withdrawn and be detained.
Australia - Australian Customs and Border Patrol Service (ACBPS) has an unfettered legal right to seize your possessions, without requiring a warrant, when you enter Australia.
Copying documents
After examining an item, Border Force officers may copy a document where they are satisfied that the document may contain information relevant to prohibited goods, an offence against the Customs Act or a prescribed Act, or to certain security matters. A ‘document’ includes information stored on mobile phones, SIM cards, laptops, personal electronic recording apparatus and computers.
There is no requirement for the traveller carrying the documents to be present when a document is copied.
https://www.homeaffairs.gov.au/trav/ente/goin/departing/baggage-examination-and-questioningCUSTOMS ACT 1901 - SECT 189 Searching
The power of an officer to search shall extend to every part of any ship, aircraft or installation, and shall authorize the opening of any package, locker, or place and the examination of all goods.
CUSTOMS ACT 1901 - SECT 201A Person with knowledge of a computer or a computer system to assist access etc.
(1) An executing officer may apply to a magistrate for an order requiring a specified person to provide any information or assistance that is reasonable and necessary to allow the officer to do one or more of the following:
(a) access data held in, or accessible from, a computer that is on warrant premises;
(b) copy the data to a data storage device ;
(c) convert the data into documentary form.
(2) The magistrate may grant the order if the magistrate is satisfied that:
(a) there are reasonable grounds for suspecting that evidential material is held in, or is accessible from, the computer; and
(b) the specified person is:
(i) reasonably suspected of having committed the offence stated in the relevant warrant; or
(ii) the owner or lessee of the computer; or
(iii) an employee of the owner or lessee of the computer; and
(c) the specified person has relevant knowledge of:
(i) the computer or a computer network of which the computer forms a part; or
(ii) measures applied to protect data held in, or accessible from, the computer.
(3) A person commits an offence if the person fails to comply with the order.
Penalty: 6 months imprisonment.
If you are traveling into Australia with pornography or sexually explicit material, you will have to declare it. This also applies to homemade films and pictures.
Under the Cybercrime Act, 2001, The court can compel a person to provide a police officer with any decryption keys that they feel will unlock any evidential material.
You can also be refused entry, have your Visa withdrawn and be detained.
United Kingdom - Police still have the right to inspect any devices at the border, due to the broad-ranging rules in the Terrorism Act, 2000. Around 60,000 people have their devices inspected and the data stored therein duplicated and retained annually.
https://www.makeuseof.com/tag/smartphone-laptop-searches-know-rights/In 1998 the UK customs were already seizing laptops and searching for porn.
http://news.bbc.co.uk/2/hi/science/nature/150465.stmThese are their powers under the Commissioners for Revenue and Customs Act 2005
9Ancillary powers
(1)The Commissioners may do anything which they think—
(a)necessary or expedient in connection with the exercise of their functions, or
(b)incidental or conducive to the exercise of their functions.
(2)This section is subject to section 35.
That is a wide ranging power !
Search and seizure of electronic media
Paragraphs 15A, 25A and 25B of schedule 2 to the Immigration Act 1971, and
section 47 of the Immigration Act 2016 provide that where there are reasonable
grounds to believe that relevant documents are at the premises, electronic devices
(such as mobile phones, laptops or tablet computers), that may contain such
documents for which the search is being conducted, may be searched and seized in
certain circumstances.
There is also the Regulation of Investigatory Powers Act 2000, part III. This requires the disclosure of decrypted information or decryption keys to government representatives with a court order.
You can also be refused entry, have your Visa withdrawn and be detained.
United States - according to a 2008 ruling made in a federal court, customs agents at U.S. airports can inspect the contents of passengers’ laptop computers. They don’t even need any evidence to do so. The Ninth US Circuit Court of Appeals in San Francisco declared a computer to be no different to a suitcase, car or any other property subject to search at an international border.
While Citizens of the USA are protected by their constitution (Residents to a certain extent) - Non-residents are not protected by their constitution.
So far there have been conflicting court cases regarding TSA and Customs warrant-less seizures of data.
You can also be refused entry, have your Visa withdrawn and be detained.
The Canadian Government warns their Citizens about the US Customs groundless searches !https://www.priv.gc.ca/en/privacy-topics/public-safety-and-law-enforcement/your-privacy-at-airports-and-borders/#toc2Cell phone, tablet, and laptop searches at a foreign border
Canadians need to know that U.S. border officials have broad inspection powers which can include seeking passwords to your laptop, tablet or mobile phone. Although infrequent, basic searches of electronic devices by U.S. officers do not require evidence of contraventions. They are performed without grounds as a routine border inspection. However, according to a new U.S. Customs and Border Protection directive, advanced searches by U.S. officials, which involve connecting to external equipment to review, copy or analyze the contents of a device, require reasonable suspicion of illegal activity or if there is a national security concern. It is important to note that the powers of border officials in many foreign countries will vary from those that exist in Canada.
According to the directive, in both basic and advanced searches, U.S. border officers may only inspect data that resides on a device and is accessible through its operating system or through other software, tools or mobile applications. They may not intentionally access information stored remotely, for instance in a cloud. To avoid doing so, they are required to ask travellers to disable internet connectivity, or where authorized, they should disable it themselves.
Travellers who are concerned about groundless searches or other aspects of the U.S. directive may wish to exercise caution and either limit the devices they bring when travelling to foreign countries, including the U.S., or remove sensitive information from devices that could be searched. Another potential measure – particularly if travelling for work and carrying protected information, for instance information subject to solicitor-client privilege – is to store it in a secure cloud which would allow you to retrieve it once you arrive at your destination.
Sources:
https://www.itnews.com.au/blogentry/laptops-smartphones-are-fair-game-for-customs-355205https://www.makeuseof.com/tag/smartphone-laptop-searches-know-rights/https://www.homeaffairs.gov.au/trav/ente/goin/departing/baggage-examination-and-questioningEDIT:
The actual amendment that pertains here is the 4th - prohibition against searches and seizures without probable cause - but border crossings are an exception, even for US citizens returning to the US. You can still refuse to be searched but you won't be allowed back into the country.
IANAL, but I don't think a law compelling US citizens to supply computer or phone passwords to US border/customs agents would fly; citizens of other countries would be fair game, though.
Both amendments apply. But the 5th is most relevant.
The 4th
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures
The actual search would fall under this. But it is already accepted that physical searches by Customs agents is legal and reasonable.
The electronic search is just an extension of this. The question is whether the private nature of such data makes it "reasonable".
Retention of the data also makes it not just a search but a seizure. It the data kept ? Who owns the data ?
I'm sure intellectual property rights and "copying and keeping a copy of property"were not considered when the constitution was written.
The 5th
Protects individuals from being compelled to be witnesses against themselves in criminal cases.
Having to disclose a password or encryption key would fall under this category. (Self incrimination)
The current argument is that they are not "in the United States" but in "Customs pre-clearance".
U.S. military bases overseas are not considered U.S. soil for the purposes of citizenship - the argument is that Customs pre-clearance is the same.
https://web.archive.org/web/20090206024519/https://www.state.gov/documents/organization/86755.pdfCan you check the links in the OP? I don't see anything about New Zealand in the link you posted, and the link is an article about the US boarder protection agents searching phones/laptops when they enter the US. Nor do I see anything about any kind of fine for not complying.
Here's the article I saw about it:
Business InsiderAccording to the article, officials need "reasonable cause" (which I presume to be similar to
probable cause) that you have broken a law in order to demand your phone password. This is very different from being able to demand a password simply because you are crossing the boarder.
The law only applies to physical devices and not to cloud passwords. The law nevertheless is not something I support.
I suggest to have a "fresh" device if you plan on entering New Zealand, and have your information stored in the cloud in a way that you can access it once you are past the border.
To have knowledge of facts which, although not amounting to direct knowledge, would cause a reasonable person, knowing the same facts, to reasonably conclude the same thing.
Probable cause definition: reasonable grounds to believe that a particular person has committed a crime, especially to justify making a search or preferring a charge.
I agree - take a fresh device or buy a new hard-drive.
I wouldn't recommend cloud storage for critical private information. Anything on the internet is vulnerable and it is potentially there forever. You potentially have multiple foreign nations trying to get access to it.
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