Intercepting Illegal Data at the Border

I’ve taken a variety of laptops through NZ Customs many times in the past. I’ve also taken through portable hard drives and flash drives. It never occurred to me that Customs might want to search them or even that they had the power to.

It also didn’t occur to Amir Mohammed, a New Zealand man who was charged after Customs searched his laptop and found bestiality videos. Luckily for Amir the courts accepted his excuse and he was discharged without conviction.

Letter to Customs

I wanted to find out more about the powers that Customs had to intercept material in this way so I wrote and asked them about it. Here’s a merging of my questions and their answers (or grab the PDF):

1. What law gives Customs the ability to search the contents of laptop computers or other digital storage devices such as hard disks or flash drives?

Section 151 of the Customs and Excise Act 1996.

2. What type of material is Customs looking for when it performs these searches?

Any goods that may be in breach of New Zealand law.

3. Does Customs looks for material that may be breaching copyright as well as objectional material?

Yes.

4. How does Customs determine that any material found is objectionable?

Section 3 of the Films, Videos and Publications Classification Act 1993 outlines the meaning of objectionable. The New Zealand Customs Service will consider an item in terms of section 3 of this Act and may seize if it is considered to be objectionable. If any clarification on this assessment is needed, Customs will refer good suspected of breaching the Films, Videos and Publications Classification Act 1991 to the Office of Film and Literature Classification (OFLC). The OFLC is then responsible for ruling whether goods are objectionable or not and will advise the Customs Service accordingly.

5. How does Customs determine that any material found is in breach of copyright?

Assuming that this question refers to the importation of commercial digital data, the Customs Service will undertake a comparison of the imported item with the copyright work. The Service will then seek input from both the importer and rights owner, and then make a determination under the Copyright Act 1994.

6. How long can Customs retain possession of a computer or other digital storage device in order to search it?

The Customs Service can detain computers and digital storage devices for a reasonable length of time to allow for examination. This time can vary depending on the circumstances.

7. Does Customs ever copy any data from any device? If so, how long is this data retained for?

Yes, in order to examine a device the contents may be copied. The length of time this data is retained will vary depending on circumstances.

8. What happens if the stored data that Customs wishes to search is protected by a password or is encrypted so that it cannot be read?

I am unable to provide an answer to this question due to operational security.

Some brief comments

  • Section 151 of the Customs Act refers to the general ability of Customs to search things and not to computers/data in particular. The Act doesn’t really mention computers or data explicitly.
  • There is an interesting parallel to the Internet filtering being implemented by the DIA, although Customs uses the OFLC to help make decisions. I assume that it’s possible to appeal the decisions made by Customs.
  • There is also an interesting parallel to the Internet copyright fight too, with Customs actually talking to both parties (importer and rights-holder) before taking possible infringement any further.
  • I wonder if they refused to answer the question about encryption because it would be too embarrassing to say “We can’t do anything”. I was actually more interested to hear whether they have the legal right to compel people to provide decryption keys.

6 Responses to “Intercepting Illegal Data at the Border”

  1. 1Ringo on Oct 12, 2009 at 9:57 pm:

    The encryption answer could just as easily be ‘we may have a vendor-supplied backdoor’. Check out the Encase website for some encryption products to avoid if you really value your privacy ;)

    Of course, the smart geek probably stores all their illicit materials encrypted on a server somewhere these days and doesn’t worry about silly Customs and their “does this laptop have the internet on it” type questions.

  2. 2Geoff on Oct 12, 2009 at 10:13 pm:

    I wonder how customs decides which computers to check and which to allow through? Do they do it randomly? Or is it like checking the luggage of certain ethnic groups for terrorism items?

  3. 3thomas on Oct 13, 2009 at 3:12 pm:

    Ringo – I don’t think they’d have vendor supplied back doors for everything! A lot of different software is used for encryption.

    Geoff – yes, I wondered that too. Unfortunately it’s the sort of question they typically refuse to answer due to “operational security”.

  4. 4Jason on Oct 13, 2009 at 8:20 pm:

    Based on the stories coming out of Canada and other locations, the various governmental agencies are using these border searches as a way to gain access to a computer without a warrant. The individuals are flagged for a search _prior_ to them crossing the border, so when they cross the border, the flag comes up and their laptop seized, imaged and then searched at leisure.

    So, perhaps a good question is, “How are individuals selected to have their computers searched?” and “Are computers searched at the request of NZ Police or other NZ or foreign agencies?”

  5. 5Graeme Edgeler on Jan 1, 2010 at 10:29 am:

    Customs have computer forensics experts skilled in the use of EnCase.

  6. 6David on Mar 8, 2010 at 12:16 pm:

    Thanks for your blog post. I have just retured from overseas and have had a laptop computer seized, so anything that I can find regarding this is very interesting.