Australian Border Force officials searched 822 travellers’ mobile phones in 2021, despite admitting it has no power to force arrivals to give them the passcode to their devices.
In January, Sydney software developer James told Guardian Australia that he and his partner were stopped on their return from Fiji by border force officials who asked them to write their phone passcodes on a piece of paper before taking the codes and their phones to another room to examine for half an hour. The phones were then returned and they were allowed to leave.
Border force confirmed the practice was allowed under the Customs Act, but declined to expand on how often it was used, or what officers did with the devices once unlocked.
In tabled responses to questions on notice from Labor’s shadow home affairs minister, Kristina Keneally, border force confirmed that in 2021 – when international travel was still limited during the Covid pandemic – officers searched 822 devices at the border, out of more than a million arriving or departing travellers.
In a written response to questions raised by the Greens digital rights spokesperson, Nick McKim, border force has confirmed there is no legal obligation for people to hand over their passcodes.
“There is no legal compulsion for a traveller to provide a password/passcode or provide assistance to an electronic device at the border,” border force said.
But if a person refuses to comply with the request and a border force officer considers there to be “a risk to the border” then border force can seize the device for further examination. There is no limit on time for how long the devices can be held for, but the agency said the policy is to keep devices for no longer than 14 days, unless it will take longer to examine the device.
Border force said a phone would only be seized where officers suspect it has “special forfeited goods” such as “illegal pornography, terrorism-related material and media that has been, or would be, refused classification”.
McKim said border force officials should be required to get a warrant before going through people’s phones.
“It’s generally the requirement in Australia and it should be no different at the border,” he said.
“Australia’s privacy protections need considerable strengthening so people’s phones aren’t examined on a hunch, or confiscated under the shadow of being referred to other authorities.”
McKim said there needs to be more transparency from border force about what data had been collected from the searches, who has access to it and how it is stored.
Border force said devices were scanned by another device, rather than manually checked by officers.
“Only trained ABF officers will undertake examinations of electronic devices,” border force said. “The examination process involves the connection of the device to examination equipment and the review of the data stored on the device to determine a subsequent course of action.”
Travellers cannot be present during the examination “for operational and security reasons”.
James, and others who expressed concerns about having their phones searched at the border, raised questions about border force officers going through their work files, or other items stored in the cloud and not on their device. Border force confirmed it does not have the power to access these files without a warrant.
Border force said officers also have the power to make copies of documents related to any offence against a prescribed act, or information relevant to the work of Australia’s spy agencies.
“Any copied information is stored securely and is subject to current ABF established security guidelines,” it said. “The ABF does not alter or delete any data as a result of an examination of a device under the Customs or Migration acts.”
The data can be shared “depending on the type of information and the specific legislation that applies to that type of information”.
