Josh Taylor
Mon 13 May 2024 11.00 EDT
Australian Border Force officials forced an Australian-US dual national to hand over his passcodes to his phone by threatening to keep the device indefinitely and then searched it out of his view, the man has alleged.
Chris*, an Australian tech entrepreneur who lives in the US with his wife and children, said he has been held up at Sydney airport for hours three times in the past year during trips to visit his family, including most recently just over a week ago.
In a complaint to border force about his treatment, seen by Guardian Australia, Chris said he was told each time he was selected randomly.
“In all three cases, I was required to hand over passwords to personal electronic devices despite objecting to this invasion of my privacy, and with all three cases personal devices were searched out of my view for extended periods,” he said.
“In the first case, I was informed that the officer had the power to compel me to divulge passwords despite this not legally being true. In the third case, I was informed that if I did not provide my phone passcode the device, which I communicated [to them] I depend on travel [for] my livelihood and to run my business, could be kept indefinitely [for] forensic examination.”
Australian Border Force officials have powers to examine people’s devices without a warrant when they visit or return to Australia through customs. Guardian Australia reported in 2022 that more than 40,000 devices had been searched in the five previous years.
Officers routinely ask travellers to provide their passcode or password to devices so they can be examined, but they do not have the power to compel passengers to hand over their passcodes, ABF explained to the Senate and in guidebooks provided to officers.
There is no limit on how long the devices can be held, but the agency said the policy was to keep devices for no longer than 14 days unless it would take longer to examine them.
Border force has said a phone would only be seized where officers suspected it had “special forfeited goods” such as “illegal pornography, terrorism-related material and media that has been, or would be, refused classification”, but Chris said the threat of seizing the device was used in his last search to attempt to compel him to hand over his passcode. He was also asked to hand over the master password for his password manager on the third visit but he refused. He said he was allowed to leave after an hour, but border force retained a USB drive.
Chris said the experience had been highly invasive, and he called it unnecessary harassment. He said he had considered stopping bringing his children back to visit their grandparents given the risk of being stopped each time.
“I’ve never been arrested, tried or convicted of any crime in any jurisdiction. I’ve passed numerous previous background checks,” he said.
“Warrantless search and seizure enables any law-abiding citizen to be subjected to an unlimited fishing expedition on the whim of any officer at any time, with zero judicial oversight or review, zero checks and balances, and zero right to obtain any information about why they are being targeted.
“My only defence is to regress to 1985 and travel without a single electronic device, depriving me of my ability to communicate, my livelihood and to even call my airline.”
A spokesperson for the ABF said it could not comment on individual cases “due to privacy obligations”. The ABF spokesperson said movements across the border were screened using a range of intelligence, targeting and profile techniques.
Kieran Pender, the acting legal director for the Human Rights Law Centre, said everyone has a right to privacy, subject only to lawful, necessary and proportionate limitations.
“The Human Rights Law Centre has consistently raised concerns around the lack of transparency, safeguards and oversight of ABF’s extraordinary powers to seize electronic devices at borders,” he said. “We are particularly concerned at ABF’s apparent use of coercive tactics to get around its lack of lawful power to compel passwords from travellers.”
Pender said the practices must be changed so the ABF is not exceeding its lawful authority.
ABF does not routinely publish information on how many people are searched, except through FoI requests. Previous data revealed officers had searched phones, computers and other devices at the border 41,410 times between 2017 and the end of 2021. That figure included 951 phones between May 2020 and the end of 2021.
Guardian Australia has requested updated data but has not received a response from Australian Border Force.
*Name changed for privacy
