New Zealand v Privacy in the digital age

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On the 29th of March this year, New Zealand updated its Customs and Excise Act, which recently came into effect. This lengthy piece of legislation includes sections pertaining to the collection of information stored on electronic devices. It explicitly states in section 228 that customs agents at points of entry into the country can access the information on a person’s phone if certain “conditions” are met.

The troublesome part is the looming threat of a legal proceeding or monetary fine if travellers refuse to give their phone to customs agents at ports of entry. If an individual refuses to turn over their device, they can face a legal proceeding or a fine of $5000 NZD (which would be approximately $4270 CAD).

In an age where people rely heavily on their phones to conduct business and store personal information, the enactment of this Act is a privacy concern not only for New Zealanders but for foreign visitors as well. Customs agents must have a “reasonable cause” to search cellular devices. Section 228 subsection 5 of the Act gives customs authorities the right to collect information to access the phone, copy the phone’s content, and detain the phone for a “reasonable time.”

The challenge with this kind of legislation is defining what “reasonable cause” and “reasonable time” during searches is. There seems to be a void in these concepts, which would not be obvious to unsuspecting travellers wanting to reach their destination without any legal problems. Privacy could very easily be encroached on if these concepts are not explicitly specified for customs agents to refer to. There is also the potential for agents to claim that each case is unique, thus giving them more discretion to violate privacy.

Balancing privacy rights with national security is a slippery slope that places security agents in a precarious position. How does one perform their duty without unduly accessing private, personal information in an era where potential threats to national security seem imminent? That is the challenge that faces customs agents in New Zealand, as they grapple with a potentially far-reaching law.

This blog post was written by a CCLA Volunteer. Opinions expressed do not necessarily reflect the views of the CCLA.