Dig­i­tal se­cu­rity

New laws en­acted in New Zea­land this month give bor­der agents the right to de­mand trav­ellers en­ter­ing the coun­try hand over pass­words for their dig­i­tal de­vices. What should you do if it hap­pens to you? asks Katina Michael, Pro­fes­sor, School for the Fu­ture

DEMM Engineering & Manufacturing - - EDITORIAL -


to Aus­tralia or New Zea­land af­ter a long-haul flight, ex­hausted and red-eyed. You’ve just re­claimed your bag­gage af­ter get­ting through im­mi­gra­tion when you’re stopped by a cus­toms of­fi­cer who de­mands you hand over your smart­phone and the pass­word. Do you know your rights?

Both Aus­tralian and New Zea­land cus­toms of­fi­cers are legally al­lowed to search not only your per­sonal bag­gage, but also the con­tents of your smart­phone, tablet or lap­top. It doesn’t mat­ter whether you are a ci­ti­zen or vis­i­tor, or whether you’re cross­ing a bor­der by air, land or sea.

New laws that came into ef­fect in New Zea­land on Oc­to­bZer 1 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).

Those who don’t com­ply could face pros­e­cu­tion and NZD5000 in fines. Bor­der agents have sim­i­lar pow­ers in Aus­tralia and else­where. In Canada, for ex­am­ple, hin­der­ing or ob­struct­ing a bor­der guard could cost you up to CND50,000 or five years in prison.

A grow­ing trend

Aus­tralia and New Zea­land don’t cur­rently pub­lish data on th­ese kinds of searches, but there is a grow­ing trend of de­vice search and seizure at US borders. There was a more than five­fold in­crease in the num­ber of elec­tronic de­vice in­spec­tions be­tween 2015 and 2016 – bring­ing the to­tal num­ber to 23,000 per year. In the first six months of 2017, the num­ber of searches was al­ready al­most 15,000.

In some of th­ese in­stances, peo­ple have been threat­ened with ar­rest if they didn’t hand over pass­words. Oth­ers have been charged. In cases where they did com­ply, peo­ple have lost sight of their de­vice for a short pe­riod, or de­vices were con­fis­cated and re­turned days or weeks later.

On top of de­vice searches, there is also can­vass­ing of so­cial me­dia ac­counts. In 2016, the United States in­tro­duced an ad­di­tional ques­tion on on­line visa ap­pli­ca­tion forms, ask­ing peo­ple to di­vulge so­cial me­dia user­names. As this form is usu­ally filled out af­ter the flights have been booked, trav­ellers might feel they have no choice but to part with this in­for­ma­tion rather than risk be­ing de­nied a visa, de­spite the ques­tion be­ing op­tional.

There is lit­tle over­sight

Bor­der agents may have a le­git­i­mate rea­son to search an in­com­ing pas­sen­ger – for in­stance, if a pas­sen­ger is sus­pected of car­ry­ing il­licit goods, banned items, or agri­cul­tural prod­ucts from abroad.

But search­ing a smart­phone is dif­fer­ent from search­ing lug­gage. Our smart­phones carry our in­ner­most thoughts, in­ti­mate pic­tures, sen­si­tive work­place doc­u­ments, and pri­vate mes­sages.

The prac­tice of search­ing elec­tronic de­vices at borders could be com­pared to po­lice hav­ing the right to in­ter­cept pri­vate com­mu­ni­ca­tions. But in such cases in Aus­tralia, po­lice re­quire a war­rant to con­duct the in­ter­cept. That means there is over­sight, and a mech­a­nism in place to guard against abuse. And the sus­pected crime must be pro­por­tion­ate to the ac­tion taken by law en­force­ment.

What to do if it hap­pens to you

If you’re stopped at a bor­der and asked to hand over your de­vices and pass­words, make sure you have ed­u­cated your­self in ad­vance about your rights in the coun­try you’re en­ter­ing.

Find out whether what you are be­ing asked is op­tional or not. Just be­cause some­one in a uni­form asks you to do some­thing, it does not nec­es­sar­ily mean you have to com­ply. If you’re not sure about your rights, ask to speak to a lawyer and don’t say any­thing that might in­crim­i­nate you. Keep your cool and don’t ar­gue with the cus­toms of­fi­cer.

You should also be smart about how you man­age your data gen­er­ally. You may wish to switch on two-fac­tor au­then­ti­ca­tion, which re­quires a pass­word on top of your pass­code. And store sen­si­tive in­for­ma­tion in the cloud on a se­cure Euro­pean server while you are trav­el­ling, ac­cess­ing it only on a needs ba­sis. Data pro­tec­tion is taken more se­ri­ously in the Euro­pean Union as a re­sult of the re­cently en­acted Gen­eral Data Pro­tec­tion Reg­u­la­tion.

Mi­crosoft, Ap­ple and Google all in­di­cate that hand­ing over a pass­word to one of their apps or de­vices is in breach of their ser­vices agree­ment, pri­vacy man­age­ment, and safety prac­tices. That doesn’t mean it’s wise to refuse to com­ply with bor­der force of­fi­cials, but it does raise ques­tions about the po­si­tion gov­ern­ments are putting trav­ellers in when they ask for this kind of in­for­ma­tion. This ar­ti­cle is re­pub­lished from The Con­ver­sa­tion un­der a Creative Com­mons li­cence. THECONVERSATION.COM

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