border airport
(Image: Unsplash/Yolanda Sun)

Even the most boring of us have personal information on our devices. Between our messages, photos, account credentials and a host of other things, there are troves of data that need to be kept private and secure. If you want to keep this information safe, then you need to be wary when travelling in and out of Australia.

Why should we be worried?

The Australian Border Force (ABF) has the power to search through and access anything on your phone, laptop or other devices. Its officers don’t need warrants or even reasonable suspicion. Everything is fair game for anyone who passes through immigration.

According to a statement released to ABC Radio Brisbane, the ABF interprets the Customs Act 1901 in the broadest terms possible:

Under Section 186 of the Customs Act 1901, Australian Border Force officers have the power to examine all goods at the border, including electronic documents and photos on mobile phones and other personal electronic devices.

If an individual refuses to comply with a request for an examination of their electronic device, that device may be held until the ABF is satisfied that the item does not present a risk to the border.

While we tolerate these conditions for bag searches, our luggage doesn’t contain anywhere near the amount of private information as our devices. Bag searches are also performed in front of us, so we know exactly how our personal items are being treated. This is not the case when it comes to our phones and laptops.

The dangers of arbitrary border searches

These border searches can harm those who are subjected to them in a number of ways. The most obvious is the invasion of privacy. Our devices contain our entire online lives and vast quantities of personal data. If border agents are given unrestricted access to everything, it’s extremely violating.

Some people may have embarrassing messages, intimate photos or banking passwords on their devices. All of these things are completely legal, however travellers still face having them exposed to border agents, even when they haven’t done anything wrong.

At the very least the process is intrusive. Since there is limited oversight, it can also lead to abuses of power, such as when an officer at the border seized a man’s phone and sent messages from it, all without a warrant or even reasonable suspicion.

The practice is also dangerous from a cybersecurity perspective. Once a device has been taken from a person’s view and accessed, the owner can’t know whether or not it has been compromised. A person can’t be sure that spyware wasn’t planted on their device, even if it’s an unlikely scenario.

This is especially concerning for those who deal with sensitive information, or are high-value targets such as journalists and executives. The only way that these individuals can guarantee their security after a search is to treat the device as if it has been compromised.

Arbitrary searches are also damaging to businesses. Those who travel with secret company data may have it exposed in these searches, potentially harming their organisation’s overall security. These inspections can even violate the laws of other regions, such as in the 2018 case of Nathan Hague.

After being subjected to an arbitrary search, Hague was forced to send out privacy breach notifications to his clients under the EU’s General Data Protection Regulation. This is because the clients’ data may have been exposed when his devices were inspected.

How did we get here?

It’s not just in Australia that travellers can be subjected to searches without reasonable cause. Many countries allow the practice, with other Five Eyes nations (Canada, New Zealand, the US and the UK) tending to be more fervent. Unfortunately, these breaches of privacy aren’t outliers, but instead fit in to the general trend built on the back of September 11 and terrorism fears.

Bit by bit, we have seen our individual freedoms eroded, with legislation ranging from the US’ Patriot Act to Australia’s Assistance and Access Bill, all under the rationale of keeping us safe.

Protecting our rights

Few people would disagree that the authorities need powers to contend with threats such as terrorism and child pornography. However, these powers need to be balanced out against the interests of individuals.

As a compromise between the two needs, arbitrary searches should be abandoned. While officers may occasionally turn up evidence of crimes in these inspections, this tiny fraction of positive results hardly justifies the intensive privacy violations of everyone else.

In cases where there is reasonable suspicion or enough evidence for warrants to be signed, then it’s likely that the public interest outweighs the individual’s privacy concerns. However, even when searches are conducted under these conditions, they need to be done with an appropriate level of oversight.

Normally, if the authorities want to search your phone, they need to jump several legal hurdles. At the border, all it takes is an immigration officer acting on a whim. If we deem this process important enough to be watched over by the judiciary in other situations, why do the rights of individuals suddenly melt away at the border?

At the moment, Australia doesn’t release public records on the number of searches conducted each year. Without even the quantity of searches in the public domain, how can we know how frequently the powers are being used, or even begin to investigate whether they are being abused?

The current policy at the border is akin to allowing any member of law enforcement to knock on your door, send you outside, then search your entire home at their leisure. It’s the digital version of rifling through your underwear drawer. No warrant or reasonable suspicion required, nor will there ever be a public record of what has happened.

Of course our society wouldn’t stand for such an outrage. So why do we accept it at our airports?

Peter Fray

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