Electronic Surveillance Act Review Won’t Stop Border Force Warrantless Phone Spying

Australia’s electronic surveillance laws are being reformed with the aim of making them “clearer, more consistent and better suited to the modern world”.

However, there is an important set of powers beyond the scope of the reforms: the broad powers of the Australian Border Force (ABF) to search personal digital devices and copy electronic information without a warrant.

A man whose phone was searched by the ABF upon entering the country recently told the Guardian that he had “no idea what officials were looking at, if a copy of any of the data had been made, where it would be stored and who would have access to it”.

Surveillance reform aims to better protect individuals’ information and ensure that law enforcement has the power to investigate serious crimes and security threats. So why is the privacy of travelers and migrants crossing the Australian border so exposed?

A notorious omission

The reform aims to replace the “current patchwork of laws” governing electronic surveillance, including the Telecommunications (Interception and Access) Act 1979 and the Surveillance Devices Act 2004, with a single streamlined and neutral law on the technological plan.

However, the scope of the reform is limited to access to information and data secretly. Activities that fall under this definition include “intercepting telephone calls, remotely accessing a person’s computer, or using a listening or tracking device.”

Read more: National security review recommends a complete overhaul of electronic surveillance – but will it work?

The Ministry of the Interior gives as an example of an activity not covered by the reform an agency accessing a computer during the execution of a search warrant. This scenario may not involve secret surveillance, but some protection is provided by the need to apply for a warrant.

In contrast, ABF powers to access electronic information and data do not require a warrant. The Customs Act 1901 allows ABF officers to examine all goods subject to customs control, including digital devices such as cell phones and laptops.

ABF officers may also make copies of documents that may be relevant to prohibited goods, the commission of an offense or “security”. A “record” includes mobile and other telephones, SIM cards, personal electronic recording devices, computers, written documents and photographs.

Under the Migrations Act 1958, ABF officers can search a person and their property if they suspect there are reasonable grounds to consider canceling the person’s visa. The person must be detained or has not been cleared by immigration. “Property” includes digital devices.

Intrusive powers

A guiding principle of reform is to craft legislation that “contains appropriate thresholds and robust, effective and consistent checks, limits, safeguards and monitoring” of “intrusive” powers.

Electronic surveillance powers are described as “intrusive” because they can reveal sensitive information about an individual or organization. ABF powers are arguably just as intrusive, but have less protection and lack transparency.

ABF agents do not need your permission to search your devices. If you refuse, you may be referred “for further enforcement action.”

Australian Border Force officials have sweeping powers to search electronic devices.
Richard Wainwright / AAP

The ABF also has no obligation to inform you of the information that has been examined or copied.

The ABF may pass information gathered from searches of digital devices to other departments, agencies, federal and state police forces, or to a coroner if it falls within a broad category of “permitted purposes.” Permitted purposes include “information relating to immigration, quarantine or border control between Australia and a foreign country”.

Notably, it is more difficult for Australian police to search your mobile phone. Although the police have general search powers, if they want to unlock your cell phone or electronic device, they must first apply for a warrant.

According to a freedom of information request submitted by the transparency activist organization Right to Know, between July 1, 2009 and June 30, 2019, there were 436 incidents in which electronic devices were examined. During the same period, content on electronic devices was copied 109 times.

A missed opportunity

By limiting the reform to covert electronic surveillance powers, the government has missed an opportunity to strengthen accountability for equally intrusive surveillance powers at the Australian border.

Why the omission? Officially, because the powers of the ABF are not secret. This is despite the fact that individuals do not know what information is being accessed, copied or stored.

Unofficially, as the government is unlikely to water down its migration and border control powers. According to the ABF, it “exercises its functions and powers at the border in order to protect the Australian community and fulfill its mission to enable legitimate travel and trade”.

The expulsion of unvaccinated tennis superstar Novak Djokovic has highlighted the popularity of ‘strong borders’.

As Novak Djokovic’s recent deportation case shows, ‘strong borders’ are popular with the public.

What should you do if the ABF wants to search your cell phone or laptop? Considering that you may face a criminal penalty if you refuse, be smart about protecting your data. You may wish to use two-factor authentication and store sensitive information in the cloud on a secure European server during your trip.

Read more: Traveling abroad? What to do if a border agent requests access to your digital device

Public submissions on reforming Australia’s electronic surveillance framework must be submitted by February 11, 2022. Unfortunately, there is no room for a conversation about the ABF’s extraordinary surveillance powers.