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New 'digital strip search' law for travellers' electronic devices has potential for abuse, law expert warns

A new "digital strip search" law giving Customs officers broader powers to scour travellers' phones at the airport could lead to some awkward situations for people who have lawful but embarrassing photos on their phone.

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The Customs and Excise Act 2018 went into effect yesterday. Source: Breakfast

And there doesn't seem to be a provision for requesting someone of the same gender to scroll through your content, as would be the case for a physical strip search, a law expert told TVNZ1's Breakfast today.

"So basically don't have naughty pictures on your phone?" Breakfast host Hayley Holt asked barrister and former Crown prosecutor Katie Hogan.

"That's right," Ms Hogan said.

The Customs and Excise Act 2018, which went into law yesterday, allows Customs to fine people up to $5000 for not providing passwords to their devices when requested.

But the searches themselves aren't new - just the broader power to get passwords, Ms Hogan said.

"There's already a power like that under our search and surveillance act," she explained "The police and other enforcement agencies can require password information already for computer searches, and if you breach that act there's a three month imprisonment penalty. So $5000 under the new Act...isn't so far."

While some have expressed concerns over privacy, Ms Hogan said there are already some safety measures written into the laws.

"There has to be that threshold. Not just anyone can be searched," she said. "The Customs officer has to have a suspicion that you're committing some sort of relevant offending.

"If nothing evidential is found, then everything goes back to you or any copy is destroyed."

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Customs must have reasonable suspicion before demanding phones and computer passwords.

Breakfast's hosts debated the matter after the interview.

"Whenever something like this comes up, I always think, 'Oh, I've got nothing to hide, take my phone and have a look,'" Matty McLean said. "But then I think are we going too far in this direction where nothing is safe and nothing is secret and nothing is sacred to us at all? Where everything is open and available for anyone to look at?"

It's not uncommon for people to have "naughty photos" on their phone, and that has the potential to lead to abuse of power, Holt suggested.

"I'm just worried, will there be bored customs officers going, 'Oh, let's go get her phone. Let's go get his phone. She looks interesting. He looks interesting'?" she asked with a laugh.

Fellow host Melissa Stokes said it is an issue she probably would have been more up in arms about in her youth. But the outrage just isn't there anymore, she said. 

"What are they going to see, my online shopping that I take all these photos of and then never buy because I can't afford it?" she joked.

If you've taken compromising photos of yourself it might be an embarrassing situation, but "you just have to own it, don't you", she added.