A partial victory

The Herald reports:

Customs will likely get powers requiring a person to provide a password or access to their electronic devices – but a threshold such as suspicion of criminal activity will have to be met.

Customs Minister Nicky Wagner today announced that the Government has agreed to a series of proposals that will modernise the Customs and Excise Act, and a Bill will be drafted for introduction later this year.

When proposed changes were released by Customs in a discussion document last year, a particularly controversial area was about access to electronic devices.

Currently, when Customs examines a person’s electronic device the owner is not legally obliged to provide a password or encryption key.

The agency says if people refuse, it can leave no way to uncover evidence of criminal offending even when officers know the device holds that evidence.

Customs’ preferred option was to require passwords for electronic devices without meeting a threshold, such as suspicion of criminal activity.

Critics of the proposal, including the NZ Council for Civil Liberties, have cited what they see as serious workability issues around the proposed change to require passwords, including the fact a person can have documents or files in cloud storage, meaning they will not be kept on an electronic device.

Today, Ms Wagner said that would not happen – but in some circumstances people would likely be required by law to provide passwords.

“The Government has agreed in principle that Customs needs to meet a statutory threshold before examining electronic devices. We have asked Customs to do further work on what this would look like in practice and report back prior to introduction of the Bill.

I was one of those aghast at the original proposal, which gave Customs an unlimited power to search your laptops, tablets and phones – just because you were going through an airport.

Requiring a a statutory threshold before the power can be exercised, such as reasonable suspicion of criminal activity, is a lot better than what was originally proposed. But it will depend on exactly what the threshold is.

I’m still unconvinced that this power is needed at all. Customs needs to give some specific examples of why this power is needed, so we can assess it better.

I absolutely support the right of Customs to make physical searches of luggage and persons when you go through airports and the like. People can be smuggling in drugs, guns, biosecurity hazards etc.

But any material on your electronic devices is not the same thing. You can e-mail it or transmit it around the world regardless of where you are.