Agency keeps about one in 40 devices searched – but there are no details on prosecutions that result

Border Force officers have seized or retained more than 1,000 devices from travellers entering Australia in the past five years but the agency cannot say how many of those interventions led to criminal prosecutions, prompting human rights experts to question the appropriateness of the powers.

Officials either seized the 1,138 devices – including mobile phones and computers – after searches at the border, or the devices were abandoned, or retained as evidential material. In 2017 Border Force kept 266 devices. This figure increased to 366 in 2018 and 367 in 2019, before dropping to 84 in 2020 and 55 in 2021.

The last two years likely reflect the significant drop in international travellers arriving in Australia as a result of border closures during the Covid-19 pandemic.

Figures obtained by Guardian Australia reveal Border Force keeps roughly one in every 40 devices searched at the border. This comes after data released last month showed officers had searched phones, computers and other devices at the border 41,410 times between 2017 and the end of 2021.

Under customs law, Border Force officers can examine people’s devices without a warrant when they visit or return to Australia.

The practice has been shrouded in mystery, with information on its operation having to be extracted from the department through formal freedom of information and parliamentary processes in the past few months.

In April Border Force told the Senate there was no legal obligation for people to hand over their passcodes but if a person refused to comply with the request and a Border Force officer considered there to be “a risk”, then Border Force could seize the device for further examination.

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 must be more transparent around the use of these extraordinary powers

Kieran Pender, Human Rights Law Centre

Border Force 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”.

The agency also revealed this week that based on records since May 2020 on whether a copy of the device had been made after searching, 34 devices were copied between May and December 2020, and 270 were copied in 2021.

Data prior to May 2020 was not available due to it not being in a searchable format.

Border Force also has no records available for how many criminal charges or other legal action have arisen from data obtained through phone searches at the border.

Digital and human rights groups have called for more transparency and safeguards over the use of the power at the border.

Justin Warren, the chair of Electronic Frontiers Australia, said it was a surprising admission for the agency to say it had no records of prosecution, and said the power to search devices without a warrant should be removed.

“The small number of devices kept or imaged suggests that most of the searches are conducted on flimsy pretexts,” he said. “Coupled with the lack of evidence that it’s used in successful convictions, the number of searches indicates the warrantless search power is neither necessary nor proportionate.

“If ABF want to search a specific device, they can ask for a warrant and convince a judge the search is needed. People have a right to privacy and this kind of surveillance en masse has no place in a liberal democracy.”

Kieran Pender, a senior lawyer with the Human Rights Law Centre, said the lack of transparency around why a phone was searched at the border was “alarming” and there were no policies or procedures to stop border authorities searching a journalist or lawyer’s phone, despite it being potentially unlawful.

“There is also a high risk that individuals are being coerced to hand over passwords, despite Border Force lacking any power to compel this,” he said last month.

“Border Force must be more transparent around the use of these extraordinary powers and the law should be changed to embed robust safeguards and oversight. The Human Rights Law Centre calls on the new Australian government to review this Border Force practice and ensure there are adequate safeguards in place.”

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