Are we China now?

I've just been reading a disturbing Twitter thread from lawyer Felix Geiringer about an apparent abuse of power by NZ Customs. Author Margie Thomson is launching a book tonight in Wellington. The details of the book are embargoed until after launch, but Nicky Hager wrote the forward and will be speaking at the launch. Given this, its a fair bet the book criticises a government agency in some way. So its highly disturbing to read that a person carrying its manuscript was stopped over the weekend by NZ Customs while entering New Zealand, detained and questioned in an effort to learn its title and content:


As Geiringer notes, Customs have some explaining to do. Because stopping critics of the government at the border and harassing them in an effort to learn about their criticism is the sort of bullshit you expect in despotisms like China, not in democratic New Zealand. Its a prima facie abuse of power, and it is difficult to see how it could possibly be a legitimate use of Customs' powers. Section 205 of the Customs and Excise Act allows detention and questioning about dutiable, prohibited, uncustomed, or forfeited goods or debt to the crown, and s208 allows it for public health or law enforcement purposes. But we don't ban books criticising the government here, and publishing something critical of a government agency or having your forward written by a critic of government power is not a criminal offence. So what was the lawful basis for this detention? And how did they know this person was carrying the manuscript so they could target them in this way?

I expect we'll hear more about this when the book is launched tonight. And no doubt there'll be some fascinating excavation of Customs' wrongdoing, and that of whichever agency put them up to this.

Climate Change: Ban palm kernel

Whenever we discuss climate change policy, we come up against the cow in the room: agriculture. And specifically dairy. Farmers, who have doubled cow numbers over the past two decades through intensification, claim that it is "too hard" for them to reduce emissions - or, rather, "too hard" while continuing to do exactly what they are doing now. But if we want to avoid the earth becoming uninhabitable, that is exactly what we need to do. So how do we force farmers to adopt less polluting practices and push them towards lower cow numbers? One simple move in New Zealand would be to ban the import of palm kernel.

Palm kernel (PKE) is used as a supplementary feed by New Zealand farmers, allowing them to feed more cows on the same land, and thus produce and pollute for longer. Its production is inherently linked to deforestation and human rights abuse, and threatens to drive Orangutans (one of our fellow hominid species) to extinction. But in addition to causing significant emissions and environmental destruction, palm kernal is a major source of emissions in its own right, being converted directly into methane by the animal.

How much methane? New Zealand imported 2.2 million tons of PKE in 2018. It is converted directly into methane at a rate of 23.4 g / kg of feed, so it produces 51.48 kT of methane. Which works out to 1.29 million tons carbon dioxide equivalent using the (lowball) ETS GWP, or 4.43 million tons carbon dioxide equivalent using the 20-year GWP (which matches our timescale for change more closely). Which is 1.6% of our annual emissions from this one source. Banning it would have a significant and immediate effect on our emissions, and a disproportionate one on warming because of the power of methane as a greenhouse gas. It would also help reverse the trend of dairy intensification (you can't overstock if you can't use supplementary feed), helping to push things in the right direction.

As for how to do it, that's the easy bit: simply declare PKE animal feed to be a prohibited import under the Customs and Excise Act 2018. This requires that the Minister "considers that the proposed prohibition is necessary in the public interest", but there is a clear public interest in reducing greenhouse gas emissions. Alternatively, amend schedule 1 of the Act to include it. 1.6% can be shaved off our emissions in a year with one simple regulation. So why doesn't the government do it?

ACC's privacy invasion

Last year the Privacy Commissioner ruled that the police practise of asking companies to "voluntarily" turn over information under the Privacy Act was illegal and that they should seek production orders instead. Now, ACC has been caught making the same demands, but to government agencies and for far more sensitive data:

ACC wrongly sought and received nine years worth of personal travel details from Customs after discovering a claimant had gone to the Cannes film festival.

Doing so has uncovered a slew of other cases in which ACC has done the same, raising questions about how it harvests information about people it is meant to be supporting through compensation and rehabilitation.

"I felt violated," said the claimant, astonished to find ACC had turned its casual interest over the Cannes trip into receiving details about every trip abroad since his compensation-related injury.

The corporation has since apologised to the claimant for seeking his travel records and found it has acted wrongly getting other claimants details in about a quarter of the 38 times this year that it used a legal manoeuvre criticised by the Supreme Court and the Privacy Commissioner.

Pretty obviously this is grossly intrusive, and ACC should be paying compensation for its unvasion of privacy. But its not just them we should be looking at, but also Customs, who handed out highly sensitive personal information without good reason. To get an idea of how sensitive that information is, remember that the police and SIS need a specific statutory authorisation to access it, and have been spanked for behaving illegally when that authorisation was ignored or expired. But here Customs was handing it out willy-nilly, essentially so a (government) insurance company could perv through someone's life to try and find a way to not pay out on a claim. Which simply isn't a good enough reason. Like banking records, this information should not be handed out without a production order signed off by a judge. And if ACC can't convince a judge that their concerns of fraud are serious enough to warrant that, then tough.

This is not what customs powers are for

The Herald has a piece about a Canadian accused of running a pyramid scheme, who was allegedly hiding his money in New Zealand. But the interesting bit is this:

It seems the police became involved when ANZ bank made a Suspicious Transaction Report about one of Gong's accounts in March 2016.

The police were able to trace the IP addresses of the computers used to make the transactions to physical addresses in Canada linked to Gong.

Then in July 2016, Customs detained Gong at the New Zealand border when he was found with 34 bank cards and more than $10,000 in undeclared cash.

His laptop and phone were cloned by Customs and copies given to the police, who later interviewed Gong. He said the millions of dollars in New Zealand bank accounts were funds from the sale of health products in China.

The police would require a search warrant to clone someone's laptop and phone. But here, they appear to have conspired with Customs to circumvent those protections. And that is simply not what Customs' border search powers are for. They are for "the administration and enforcement of Customs controls at the border", not for undermining due process and the right to be free from unreasonable search and seizure in New Zealand.

The good news is that the new Customs and Excise Act 2018 makes it clear that Customs will only be able to search electronic devices where they have reasonable cause to suspect "relevant offending" - that is, offences related to importing or exporting prohibited goods. The question is whether Customs will actually obey that, or continue to carry out searches at the behest of police in order to allow them to circumvent warrant requirements and harvest data unlawfully.

The police break the law

It turns out that the spies aren't the only coercive government agency seemingly incapable of following the rules. The police had been unlawfully accessing government data on people's travel for more than a year:

Police broke the law by accessing Customs and Immigration data for more than a year when they did not have permission to do so.

The embarrassing situation saw police logging on to CusMod, Customs’ computer system, 15,799 times between December 2015 and January 2017 for border security reasons after an “administrative oversight” led to an authorisation expiry date being ignored.

It follows a December announcement by Inspector General of Intelligence and Security Cheryl Gwyn that the country’s spies also unlawfully accessed the same database for more than 20 years between 1997 and 2016.

[...]

Customs Minister Meka Whaitiri was informed in December after asking for information on other CusMod access arrangements.

CusMod is Customs' internal database of people's travel movements. Its used for setting border alerts, so agencies can be alerted if someone enters or leaves the country or arrange for them to be stopped, and it records information on customs officers interactions with people (so e.g. when they poke through all your electronic devices at the airport). Its the sort of thing you can see that there are legitimate law enforcement uses for. But those uses have to be legal and authorised. And the police are so institutionally useless, that they simply let that authorisation expire.

Their "defence" is that the searches would have all been legal if authorised 9that is, nothing was outside their internal policy, whatever that is). But that wouldn't stand up in court if they failed to apply for a search warrant, and it isn't good enough here. The police, of all agencies, need to obey the law, and be seen to obey it. Their behaviour must be beyond reproach. instead, we have systematic, SIS-like illegality. And that's simply not good enough. There's no suggestion in the article that anyone was held to account or faced employment consequences for this systematic illegality. And without that, there's simply no incentive for it not to happen again.

Limiting electronic border searches

Last night the government introduced a new Customs and Excise Bill to Parliament. The bill would replace the Customs and Excise Act 1996 and one of the features is that it finally imposes some limits on Customs' unreasonable and invasive practice of electronic border searches.

The new provisions are in s207 of the bill. The short version is that Customs will only be able to search your electronic devices if they have reasonable cause to suspect "relevant offending" - defined strictly in terms of offences under the Act or the import or export of prohibited goods. And they won't be able to copy anything unless they have reasonable cause to suspect that evidence of that offending will be present. The search threshold is subject to some uncertainty as the new bill shifts prohibited goods largely to an Order In Council system, meaning we don't know exactly what is covered. But the bill includes objectionable publications and "goods that are for a dishonest purpose" (which ends up meaning a crime involving dishonesty in terms of the Crimes Act 1961). The upshot: unless the government passes some very dubious Orders In Council, Customs will not be able to abuse border searches to help police bypass the need for search warrants, they will not be able to abuse them to collect information for the SIS, and they will not be allowed to abuse them to search for pirated TV (which is the primary reason for such searches at present). They'll also be required to report annually on these searches - though not on the numbers of full vs initial searches, and not on what fraction of them actually result in finding anything.

The downside: Customs will be able to demand your password or that you assist them in unlocking any device. So, change your passwords before and after travel (better yet: don't travel with any devices or data other than "if you can read this you are a spying twatcock". Buy a burner at the other end, and get your data encrypted over the cloud).

On paper, this is still a huge advance. The problem is practice. To point out the obvious, Customs is an organisation which operates in near-total secrecy, with an entrenched culture of doing "favours" for police and foreign agencies. Do we really think the organisation which unlawfully harasses cyberactivists and harassed Kim Dotcom and his friends to earn "brownie points" with the FBI is going to change? Yeah, right. Unless this law is coupled with a purge of senior management to change the current institutional culture, I predict we will have a large number of unlawful searches, resulting in abuse of people's privacy and significant liability for the government.

The bigger problem is necessity. The new thresholds largely mirror the requirements for search warrants, sans judicial oversight. So if there's actual reasonable cause (rather than trawling and harassment), Customs could just get one of those. There's perhaps a timeliness argument, but I don't think its beyond Customs' abilities to get a proper warrant within 24 hours if they need to. Like the NZCCL, I think the intrusiveness of these searches requires proper oversight, not the suspicions of some jumped-up security thug at the border. If Customs wants to look at our devices, they should do what the police do and get a warrant for it.

Customs are Islamophobic and racist

Radio New Zealand this morning has appalling data on apparent Islamophobia by Customs, with kiwi Muslims being regularly stopped and searched at airports for no apparent reason other than their religion:

Members of New Zealand's Muslim community say they have been humiliated and treated like "criminals" by airport customs.

They say they are regularly stopped at Auckland Airport for hours, while their belongings are searched and their mobile phones taken off them.

[...]

On Sunday night, Muslims living in Auckland's Mount Roskill suburb gathered at Al Manar mosque to pray, celebrating the final week of Ramadan.

Between prayers, the Imam made an announcement asking those who had been stopped by New Zealand customs to come forward and share their stories.

RNZ News spoke to 11 people that night.

Unmentioned: thanks to National, Customs can give the data it pulls off those phones and digital devices straight to the police, or the SIS (who can then pass it on to their foreign masters), without any need for suspicion, let alone a warrant.

Also worth noting: this isn't the first time this issue has been raised. Its a persistent, pervasive problem of discrimination at the border. Customs, of course, denies it, pretending that there is a reason for these searches. Unfortunately, what this "reason" boils down to is Islamophobia and racism. And the net effect of it is to tell kiwi Muslims that they're not "real" New Zealanders and that the state hates them and will not let them live their lives in peace. And when you're fighting a "war on terror", that message is an extremely dangerous one to send.

National wants Customs to be able to read your email

Thinking of travelling overseas ever? The National Party wants Customs to be able to force you to divulge passwords to all your electronic devices at the border, so they can paw through your files and read your email. Or just download it all. And National has already passed legislation allowing them to give that information to spy agencies for "sharing".

Supposedly Customs will only exercise this power on suspicion of criminal activity. But they'll be writing the rules themselves, and have expressed a strong desire or suspicionless searches, so that "threshold" will be deliberately easy to meet. And there is no question that it will be abused: Customs has been caught in the past abusing its border search and seizure powers for political bullying of cyberactivists, to get "brownie points" with the FBI, and to help police circumvent legal checks and balances on their search powers. And in practice, what they mostly examine digital devices for at present is to search for TV - the possession of which isn't a criminal offence. National would give these searches legal sanction, and allow Customs to force passwords to be divulged on pain of prosecution - and all so they can be local bully boys for Hollywood.

We should sya no to this expansion of powers. If Customs want access to digital devices to perform intrusive, wide-ranging searches, they should do what the police do: get a warrant.

This isn't helping

Speaking of ham-fisted anti-terror measures increasing radicalisation, Radio New Zealand has the appalling story of a kiwi Muslim questioned at the airport after visiting her family in Iraq. There seems to have been no justification for this questioning, and its primary effect is to reinforce the perception that Muslims aren't real kiwis and are enemies of the state who will not be left to live their lives in peace. Which is not exactly going to encourage a positive perception of the state which bullies them in this way, or encourage them to volunteer information which may result in others being similarly bullied.

Countering terrorism ultimately depends on community cooperation. And you don't get that by victimising and bullying an entire community. Instead, that just makes things worse. We have only to look at the UK or Australia for the consequences.

A massive increase in digital device seizures

Last year, in the face of media interest in digital border searches and device seizures prompted by some pretty obvious cases of political bullying and admissions they were harassing people for the FBI for "brownie points", Customs was forced to release some statistics. They said that 2014, they seized 845 devices at the border. Earlier statistics suggested that roughly 50% of these seizures were for copyright. Today, Customs released some more statistics to an FYI requester, apparently showing a massive increase in digital searches:

Records show that Customs intercepted 187 prohibited items from digital devices between 1 and 14 January 2015 from entering New Zealand. 137 items breached Intellectual Property Rights, five items were deemed objectionable material, and 45 items were categorised as "other" in Customs' database.

Assuming that "items" equals "devices seized" (which seems to be the case from previous data), 187 items in two weeks represents a massive increase in searches. Even allowing for the fact that January is a busy month, applying the same rate of seizures per visitor to other months implies that Customs carried out over 3500 digital seizures in 2014, more than four times as many as in 2013. And at this stage its worth noting that these are seizures. As Customs says,

The number of devices searched at the border would be significantly larger than the number of devices detained at the border by Customs for forensic examination.

And again, almost three-quarters of those seizures were for intellectual property. This is what Customs wants your password for: because you're watching TV.

While I don't think too many people would be upset at them seizing legally objectionable material such as child pornography at the border, when 97% of seizures - and a massively higher proportion of searches - finds no such thing, it suggests they are being over-vigorous.

But what really stinks is that after a year, they still don't have data on this. They're exercising a highly intrusive search power, enabling them to trawl through almost every aspect of someone's life, and they don't even bother to count how many times they are doing it. And that is simply unacceptable. We count search warrants. We count strip searches. We count surveillance warrants. We do this because we understand that intrusive search powers need to be combined with statutory monitoring so we can assess their effectiveness and whether they are being abused. Customs don't want to count their searches, but what data they have released strongly suggests that they do too many of them and find too litle - i.e. that those powers are being applied arbitrarily and abusively. And that is unacceptable.

(The information for this post came from FYI, New Zealand's online OIA request site).

Suspicionless electronic border searches are unreasonable

Back in March we learned that Customs wants the right to search all your data whenever you enter New Zealand, without suspicion - and jail you if you refuse to give them all your passwords. Meanwhile, in the US, a Federal judge has just ruled such suspicionless electronic border searches unconstitutional:

A federal judge said the search of a traveler's laptop at a Los Angeles airport was "unreasonable," and violated his constitutional privacy protections.

In an opinion released Friday, US District Judge Amy Berman Jackson allowed a defendant to suppress evidence collected from his laptop in 2013, dealing a blow to the government's argument that he was selling aircraft parts illegally to embargoed Iran.

Jackson said the search should not have happened because at the time it was "supported by so little suspicion of ongoing or imminent criminal activity," adding that the search was "invasive" of the traveler's privacy.

What should have been a routine border inspection was anything but, Jackson wrote, because the laptop was taken 150 miles away so its data could be downloaded and stored for an indefinite period.

And that's the problem right there: an electronic "search" isn't a search, but a wholesale copying and retention for future unspecified uses of every aspect of our lives. And the data isn't just kept by Customs, but can be turned over to the police, foreign agencies, or even the SIS. Its an invitation to police to circumvent normal warrant requirements, for customs to sell out our privacy for "brownie points" from foreigners, and to the government to target their political opponents - something we're already beginning to see. And that's why we should not allow such suspicionless searches. If Customs wants to perv through our data, they should do what the police have to: get a warrant.

Lets hold Customs to their word

Two weeks ago, we learned that Customs wanted to poke through all your data whenever you entered the country - and jail you if you refused to cooperate. The public outcry at that clearly had some effect, because when they appeared in front of a select committee this week, they'd changed their tune:

Customs boss Carolyn Tremain has told MPs the department would only request travellers hand over passwords to their electronic devices if it had a reason to be suspicious about what was on them.

[...]

Although the proposed power would let Customs request passwords from any traveller or do random checks on electronic devices, Tremain told a parliamentary select committee that was not its intention.

Instead, the department would only use the power if it was acting on "some intelligence or observation of abnormal behaviour", she said.

Excellent. But since officials can and do lie, let's hold Customs to their word on this, and require them to show that suspicion to a judge and get a warrant, just like every other agency who wants to perv through our data.

Customs wants your data

So, in addition to the GCSB spying on you while you're on holiday, Customs now wants to poke through all the data on your phone or laptop when you come back:

Customs are seeking the power to require people to disclose passwords to their electronic devices when entering New Zealand.

Failing to do so without reasonable excuse should be an offence punishable with three months prison, it has suggested.

It said the power would be useful in helping detect objectionable material and evidence of other offending, such as drugs offences, as well as to verify people's travel plans.

Part of the policy, explained full here, is also an explicit power for them to poke through any electronic device at the border. But quite apart from a massive invasion of privacy for ordinary tourists, we already know that these questionably-legal powers are being used to circumvent police warrant requirements and for political surveillance. We also know that they're largely unsuccessful; while they don't keep proper records, of thousands of digital searches performed in 2012 (some fraction of the 0.2% of 4.8 million international arrivals whose baggage was searched), only 234 searches were "successful", and half of those were for copyright infringement. So, a massive invasion of privacy for very little gain, and the very definition of unreasonable search and seizure.

Rather than violating our rights in this way, Customs should do what every other agency has to do when searching our devices: get a warrant.

More harassment of Dotcom

Not content with harassing Kim Dotcom at US behest, our government is now harassing anyone who says they're visiting him:

Welcome to New Zealand - unless you're here to see Kim Dotcom.

That seems to be the message for those arriving in the country after yet another guest visiting the businessman was detained by the Customs Service for hours.

A connection to the accused copyright pirate has been linked on another occasion with a long stay in a detention room - and a lot of strange questions.

Graphic designer Sarah Torrent, 22, spent seven hours being quizzed by officials after landing in New Zealand yesterday and telling border officials she was staying at Dotcom's house.

She had met Dotcom online and he invited her to travel to New Zealand for a holiday.

Dotcom said more than a dozen visitors have been isolated by the Customs Service after declaring his home address for their stay in New Zealand.

A particularly creepy feature: they demanded the passwords to her laptop and phone, allowing them to poke through the most private aspects of her life (and copy and store them for the future amusement of themselves and any partner organisations). Right to be free from unreasonable search and seizure? It doesn't exist if you're an enemy of the (United) State(s).

But this is what happens if you have a government body obsessed with getting "brownie points" with the FBI: people's rights get stomped on, all so some petty manager can big-note. And our international reputation and basic decency get to be collateral damage for US bureaucratic bribery.

A surveillance power-grab

Section 7 of the government's spy bill introduces a new power for police and SIS to access information held by Customs. Its not mentioned in the press release, and the bill's explanatory note is extremely vague. So what's it about? Fortunately, the BORA-vet is explicit: its about allowing police and SIS access the fruit of Customs' warrantless border-search powers:

38.The Customs and Excise Act contains significant search and surveillance powers. As an example of one such power, a High Court decision has held that s 151 provides that a Customs officer may examine or analyse any goods that are subject to the control of Customs or the officer has reasonable cause to suspect are subject to the control of Customs. Section 151 is designed to provide Customs officers with the widest possible powers to deal with persons who arrive in New Zealand from overseas. Customs officers are entitled to examine and analyse such articles as may be of interest to them by any means whatsoever. Section 151 does not provide a requirement of reasonable cause or suspicion of criminal activity, and the information obtained may be retained for law enforcement purposes. An example of the information obtained includes data downloaded from a cell phone. [17]

39.It is entirely appropriate for Customs to have wide latitude to search and seize goods at the border without a warrant for the purposes of border protection. What is of issue is NZSIS and Police having access to data taken by Customs without a warrant for border protection and then using it for other purposes such as investigation of suspected criminal offending. We consider that comprehensive examination of data, either from cell phones, laptops or other storage media, for general law enforcement purposes would require at least reasonable suspicion. [18]

40.The Bill states that the use of Customs’ information by NZSIS and Police is for the purpose of conducting counter-terrorism investigations. The investigations involve addressing serious threats to safety or property and the information taken by Customs is in the strictly regulated environment at the border. This power to access Customs’ information will be subject to a sunset clause expiring on 1 April 2018. In addition, in November 2013 Cabinet agreed to a full review of the Customs and Excise Act. The review process now underway aims to develop new legislation that improves facilitation of travel and trade through the border, supports Customs’ border management and has the flexibility to adapt to new technologies and developments. It is intended to have new legislation passed in 2017.

41.Based on the above, we consider that access to Customs’ information for the limited purpose of counter-terrorism investigations appears to be a reasonable search and seizure.

[Emphasis added]

The prospect of the police using Customs to circumvent warrant provisions is one I've raised concerns about in the past. The Minister of Justice has just said that it's illegal, but that she's OK with legalising it (because "national security" justifies spies poking through all your text messages and data without a warrant). But the fact that she's said its illegal invites the obvious question: how many times has Customs broken the law by providing border search information to police or the SIS? And will they be held accountable for it?

An outrageous abuse of the OIA

That's the only way to describe Customs' OIA procedures:

Customs developed a special process for releasing public information to the media which included an increase in delays and the freedom for its Cabinet minister to change whatever was released, according to documents provided to the Herald.

The papers (see below) detailing Customs processes for handling Official Information Act requests show it built in a 10-day buffer to give its minister more time to respond.

It signalled there were special steps to be taken for requests for information from politicians, news media or lobby groups.

Those "special steps" mean that any request from such suspect groups goes straight to the Minister's office. Because the Minister needs 10 days to consider it, there's a note that this may require an extension - which surely violates the "as soon as reasonably practicable" clause, and looks a lot like an outright circumvention of the 20-day maximum. And while the Minister's views are called "feedback", any public servant would view ignoring them as a career-limiting move. The net result? Delay and politicised decision-making, right there in black and white.

Underlying all of this is the "no surprises" policy, which has metastisised from notifying the Minister when a request may result in media inquiries or questions in the House (things which they have a legitimate interest in) to giving them a veto power on requests and effectively using the OIA to spy on the inquiries of the media and opposition (things that they do not).

The Ombudsman has already signalled an inquiry into OIA processes, focusing on exactly this type of abuse. Its time that she put a stop to this Ministerial micromanagement, and restored the public's right to know.

Customs on digital border interceptions

The increased public scrutiny of Customs' search and seizure of digital devices has forced them to release some statistics - and some spin:

Last year, Customs detained 295 computers and 548 electronic devices for detailed examination of equipment that were suspected to contain objectionable material or other evidence of border offending.

In 2013, targeted searches of passengers’ luggage at airports led to a number of arrests, including a German tourist who was jailed for importing objectionable publications and images after Customs found over 35,000 child sexual abuse images on his laptop.

Customs would have you believe that this is all about child pornography. But stats released last year showed that half of all seizures were in fact for "materials breaching intellectual property rights". Those stats also showed that between september 2012 and August 2013, only 234 searches resulted in finding prohibited material. Assuming the number of searches has not jumped dramatically in the last four months, this suggests that only around a quarter of these grossly intrusive searches are successful.

Plus of course there's their unlawful searches of bystander's devices to allow Police to circumvent the Search and Surveillance Act, and their searches for the FBI for "brownie points".

But that's OK, because they assure us that "“Those who don’t break the law have nothing to worry about". Bullshit. The unreasonable seizure of Sam Blackman's devices shows that the innocent have a lot to worry about - and that Customs may be misusing its powers to conduct political searches.

While Customs' openness is welcome here, there needs to be a lot more of it, as well as much tighter constraints on their powers. We have a right against unreasonable search and seizure. Customs' limitless powers seem to be the very definition of "unreasonable".

Who are Customs really working for?

We already know that Customs is abusing its powers and conducting border searches - including of digital devices - in order to help the police (where "help" equals "evade the restrictions placed on them by the Search and Surveillance Act 2012" - something which should be unlawful). But there's someone else Customs is trying to suck up to and gathering information on behalf of: the FBI:

Just weeks after it opened, Mr Davis wrote to Immigration NZ's intelligence unit, which also holds highly personal information, telling staff there of the FBI's interest in the internet tycoon Kim Dotcom.

In an email released under the Official Information Act, Mr Davis told an Immigration NZ intelligence officer that Customs' Washington liaison was after information about Dotcom.

He said "the FBI would be interested in anything we have on Kim Dotcom so any information we can proactively feed to them on him will buy you many brownie points".

Immigration NZ staff passed around the request, with one person advising they seek legal advice before passing any information to the FBI. A spokesman said no information was passed on but refused to say if that was because legal advice advised against doing so.

At the time of the request, no New Zealand agency had formally been engaged under legal assistance laws with the US. Dotcom's status at the time was the same as any other public citizen.

I'm not aware of any law which says a government agency can spy on us without reason and turn our information over to a foreign power for "brownie points", and Customs is refusing to talk about it. But apart from legality, it also raises questions about who these parts of Customs are really working for: us, or the Americans? And on that, I think they owe us an answer. We pay their salaries, after all...

Another abusive digital search

My Twitter feed this morning has been full of tweets by, about, and in support of Sam Blackman, whose digital devices were seized at the border by Customs. No reasons were given for the seizure. Which would seem to be the very definition of an unreasonable search and seizure.

In the absence of reasons from Customs, all we have is suspicion. And on that front, its worth noting that Blackman had recently attended the Stop Bugging Us conference in the UK, and thinks that might have raised a red flag. If so, then Customs seems to be using border searches to persecute and surveill the political opponents (and those who might be opponents, such as academics and journalists) of state spies. Which doesn't really seem to be related to the enforcement of Customs controls at the border, and thus is an unlawful exercise of state power.

Unfortunately, unless Blackman has a few thousand dollars to throw away on a BORA case for unreasonable search and surveillance, we'll never know. Though there is one avenue. The Ombudsman has jurisdiction over Customs, and can investigate actions for unreasonableness. Anyone whose devices are searched at the border by Customs should immediately file a complaint with the Ombudsman's Office. At the least, you'll force Customs to disclose a reason, which can then be examined - and that's the first step to ending these searches.

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.