Tuesday, October 08, 2013

Customs, digital searches, and the police

Last month, in response to an admission by the US government that it uses border searches of laptops to harass and monitor its domestic political opponents, I speculated on whether the New Zealand government was doing this too. Thanks to Thomas Beagle of TechLiberty, we already knew that Customs claimed the right to search laptops and digital devices, both for material that infringes copyright and "any goods that may be in breach of New Zealand law", on the dubious grounds of s151 of the Customs and Excise Act 1996. So how often do they exercise those powers? According to a response to an FYI request, they don't know, because they don't keep proper records:

Information in relation to the number of searches conducted by Customs on laptop computers, portable hard drives, USB sticks, cellphones, or other digital devices (digital devices) of people entering New Zealand is not specifically recorded.
Apparently it might be in the free-text of search records in their database, but Customs are apparently incapable of searching that for keywords (which means its a pretty crap database and the taxpayer got ripped off on another IT project). However, they do know how many searches were successful:
There have been 234 interceptions of prohibited material found in digital devices in the period of 1 September 2012 to 1 August 2013. 116 searches carried out by Customs found objectionable material in a digital device, and 118 searches found materials breaching intellectual property rights. Please note that this information relates only to searches in which objectionable material or a breach of intellectual property rights was found on the device searched. It does not include data where the digital device looked at contained evidence of another type of offence (such as fraud).
This tells us two interesting things. Firstly, that the rate of searches - at least ~117 per million visitors, and that's only counting some of the successful ones - is significantly higher than that of the US (which from the ACLU figures above is ~83 per million visitors, total). Secondly, that Customs thinks its its job to search digital devices at the border for evidence useful to the police. We already knew this, because its been mentioned in media reports (e.g. they copied a suspect's partner's cellphone every time she went through customs, stealing all her emails, text messages and other data, just in the hope of finding something incriminating), but its nice to have it confirmed. Thomas Beagle of TechLiberty has been investigating this aspect, and has got Customs to admit that the police provide them with both the names of people they are interested in and the type of data they wish to examine [PDF] i.e. that they use Customs to do an end-run around the restrictions of the Search and Surveillance Act 2012 (because Customs doesn't need reasonable suspicion to perform a search, and such searches are not subject to any judicial oversight). He has also obtained a copy of the MOU on information exchange between police and Customs [PDF], which is horrifyingly broad (basicly: the two organisations, through designated employees, have total access to each other's databases). While you'd expect some degree of information sharing around e.g. suspected drug smugglers and provision of translators, it goes a lot further than that.

(And here its worth remembering: two campaigners against the GCSB Bill were "coincidentally" stopped and questioned by Customs when returning to New Zealand. Its not just criminals they're targeting...)

We should be concerned about this. Customs has search powers for the purpose of enforcing customs controls and border security. Their use for any other purpose is an abuse. Their proxy use by Police to evade judicial oversight of searches is nothing less than a conspiracy to undermine the law. But beyond that, this is a highly intrusive search power, which lets Customs paw through - and copy - your email, your work, your life. Even if it wasn't being used so dubiously, the least they owe us is a full accounting of its use.