How Effective Are the Australian Government's Digital Surveillance Laws?

How effective are The Australian’s government digital surveillance laws?

Background:

The evolution of digital technology has offered individuals unprecedented connection, convenience and choice in their everyday lives. In particular, information communication technologies have revolutionised our common modes of interaction. For example, messaging applications on smartphones allow users to exchange texts, photos, and other data instantaneously, forming ‘the backbone of digital life for tens of millions of individuals, and providing a popular means of communication and access to information’. Information communication technologies collect, store, use and analyse a vast amount of data, including personal information. Now more than ever, our communications, financial information, health and biometric data are digitally created and held. Other private and sensitive online data can include information about a person’s political beliefs, sexual orientation and geographic location and movements which could also be used for surveillance use.

Surveillance is primarily used by government organisations for the purpose of intelligence gathering, prevention of crime, protection of a process, person or group, or the investigation of crime. The Australian Federal Government has recently passed the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (“the Act”), which allows government agencies to have greater access to encrypted messages, such as those sent through WhatsApp. Arguments for (that they are effective).[1] The Act also ensures “law enforcement and national security agencies are equipped with the tools necessary to keep the Australian community safe in the digital age”.[2] The Act would also enables the Department of Home Affairs to disclose photos and other personal identifying information “between government agencies and, in some cases, private organisations”.[3] Not only can this information be shared for reasons of national security, it can also be used for general law enforcement, and road safety as well. There is still an ongoing debate on the new Australian Government surveillance laws in regards to privacy and the ethical use and security of data. There is also the Australian Security Intelligence Organisation Act 1979 (ASIO Act) to extend ASIO’s warrant-based computer access powers to authorise the interception of telecommunications, the temporary removal of computers or other things from premises, and the concealment of activities done under a warrant after its expiry.[4]

According to the Department of Home Affairs, the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (“the Act”) was created to counter attacks by terrorists and extremists, abusers of child sex and criminal organisations using encryption over the internet and other forms of digital protection to conceal illegal behaviour. The Act aims to address these threats by introducing a suite of measures that will improve the ability of agencies to access intelligible communications content and data. In addition, the proposed measures go far beyond these threats, including assisting the implementation of any criminal laws, in force, in any country overseas and any exercise of any power under any law protecting “The public revenue (for example, proposed paragraph 317L(2)(c))”.[5] Australians are subject to rising levels of government surveillance. Protecting us from criminal or terrorist activity is usually justified as needed.

Usually the executive (i.e. Police & Intelligence Agencies) can request access to your telephone and internet records by seeking a warrant or authorisation under the Telecommunications (Interception and Access) Act 1979 (Cth) (TIA Act), Surveillance Devices Act 2004 (Cth) (SDA) or Crimes Act 1914 (Cth) (Crimes Act) to Internet Service Providers. This can disclose information such as your GPS location and who you have communicated to (emailed or messaged).[6]

Given the vast amounts of information obtained by surveillance, it may seem reasonable to assume that unless they raise suspicion, individuals will never be investigated.

Initially when the bill was introduced, many said that this bill goes against worldwide best practices in digital privacy. Australians should be able to have the privacy, security and integrity for our communications. No legislation, executive order, or privacy agreement between systems providers and the government should undermine digital privacy rights in a manner that is not appropriate to the harm of sought to be addressed and without adequate transparency and oversight.[7] The Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (“the Act”) also could possibly be impractical and could have serious cybersecurity and economic effects as it breaches key privacy rights not only for Australians but for all customers of affected companies (no matter where they may be in the world) which could cause international implications.[8]

The Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (“the Act”), also grants the Director-General of Security, the chief officer of an interception agency and the Attorney-General additional powers to issue new types of orders. These include, directly and indirectly, forcing communications and technology companies to provide information about how networks are built and how information is stored, or to directly access encrypted data if they have a key. Taking this further, The Act also grants the power to compel companies to engage in actively building new tools and mechanisms at the request of law enforcement agencies.

Information in relation to an assistance request be cannot be disclosed to individuals. The use and disclosure provisions in the legislation are restrictive to protect law enforcement and national security capabilities, as well as to protect sensitive commercial information. There are exceptions – including that providers and their employees may disclose information where this is required to execute the request for assistance, to obtain legal advice or for the purpose of legal proceedings.[9]

The Act puts few limits or constraints on the assistance that telecommunication providers may be ordered to offer to the Australian Government. There are also concerns about transparency and the range of internet and technology service providers is also extremely wide. They may include telecommunications companies, internet service providers, email providers, social media platforms many more. It also applies to those who develop, supply or update software and manufacture, supply, install or maintain data processing technology.[10]

Enforcement of criminal law in other countries may mean that international data requests will be channeled through Australia as the "weakest link" of our Five Eyes allies. This is because Australia has no enforceable protection of human rights at the federal level.[11]

The Act sought to address the possible wider effects of flaws and vulnerabilities by banning the implementation of a' systemic loophole' in the form of electronic security. This prohibition also expressly prohibited the introduction or creation of decryption capabilities or making methods of encryption less effective.[12]

Another key concern with the bill is its potential impact on areas of the Australian IT industry, as international users may be worried that their own data may not be shielded from Australian governments. This may present a particular problem for companies selling to the European Union, where a strict data privacy law known as the General Data Protection Regulation (GDPR) applies.[13]

If a provider refuses to comply with the Act with a requirement under a compulsory notice, they may be subject to enforcement proceedings. Enforcement proceedings are not expected to be used widely as agencies will continue to work with providers to ensure the requirements in a notice are met. Non-compliance with a notice may have serious negative consequences for law enforcement and national security, which is why civil penalties apply to deter providers from contravening their legal obligations. These penalties include that companies may face a maximum penalty of approximately AUD $10 million (or 47,619 penalty units) and Individuals (who are sole traders, not employees within an organisation) may face a maximum penalty of approximately AUD $50,000 (or 238 penalty units).[14]

It is not clear how the government will impose such regulations on transnational technology companies. For example, if Facebook received a fine under the law for non-compliance, it could simply seize operations or refuse to pay. However, $10 million is a drop in the ocean for businesses like Facebook, whose total revenue last year reached $40 billion.[15]

Conclusion

In conclusion, government surveillance is quite crucial to Australia’s National Security and with the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (“the Act”),  it was was developed to address the threats posed by terrorists, child sex offenders and criminal organisations that use encryption and other forms of digital protection to mask illegal conduct. The Act intends to address these threats by introducing a suite of measures that will improve the ability of agencies to access intelligible communications content and data.
For regular users of computers and smartphones, things won't change much, but if you get caught up in the investigation of a serious crime, or are of significant interest to government organisations and intelligence agencies, the new powers will make it much easier for government agencies to gain full access to the information, encrypted or not, on your computers and smartphones.
I believe that that governments must take steps to protect people from security threats but collecting vast amounts of data exercises too much power as well as poses a risk.

References

Interviews

• Anonymous, Australian Federal Police (2019)

Legislation

• Australian Security Intelligence Organisation Act 1979 (ASIO Act), Division 2, Subdivision C, 25A
• Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018, Sch 1, s 317ZG.

Websites

• Anna Bunn. 2019. Australians accept government surveillance, for now. [ONLINE] Available at: https://theconversation.com/australians-accept-government-surveillance-for-now-110789.
• The Assistance and Access Bill 2018 . 2019. The Assistance and Access Bill 2018 . [ONLINE] Available at: https://www.homeaffairs.gov.au/help-and-support/how-to-engage-us/consultations/the-assistance-and-access-bill-2018.
• Australian Lawyers for Human Rights. 2018. Consultation in relation to the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018. [ONLINE] Available at: https://www.homeaffairs.gov.au/how-to-engage-us-subsite/files/assistance-access-bill-2018/australian-lawyers-for-human-rights.pdf.
• Department of Home Affairs. 2019. FAQ - The Assistance and Access Act. [ONLINE] Available at: https://www.homeaffairs.gov.au/nat-security/files/assistance-access-act-faq.pdf.
• Monique Mann. 2019. The devil is in the detail of government bill to enable access to communications data. [ONLINE] Available at: https://theconversation.com/the-devil-is-in-the-detail-of-government-bill-to-enable-access-to-communications-data-96909.
• Robert Merkel. 2019. Encryption: for the majority of us, life goes on. [ONLINE] Available at: https://www.smh.com.au/national/encryption-for-the-majority-of-us-life-goes-on-20181210-p50l8r.html.

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[1] Anna Bunn. 2019. Australians accept government surveillance, for now. [ONLINE] Available at: https://theconversation.com/australians-accept-government-surveillance-for-now-110789.

[2] The Assistance and Access Bill 2018 . 2019. The Assistance and Access Bill 2018 . [ONLINE] Available at: https://www.homeaffairs.gov.au/help-and-support/how-to-engage-us/consultations/the-assistance-and-access-bill-2018.

[3] Anna Bunn. 2019. Australians accept government surveillance, for now. [ONLINE] Available at: https://theconversation.com/australians-accept-government-surveillance-for-now-110789.

[4] Australian Security Intelligence Organisation Act 1979 (ASIO Act), Division 2, Subdivision C, 25A

[5] The Assistance and Access Bill 2018 . 2019. The Assistance and Access Bill 2018 . [ONLINE] Available at: https://www.homeaffairs.gov.au/help-and-support/how-to-engage-us/consultations/the-assistance-and-access-bill-2018.

[6] Anonymous, Australian Federal Police (2019). [INTERVIEW]

[7] Australian Lawyers for Human Rights. 2018. Consultation in relation to the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018. [ONLINE] Available at: https://www.homeaffairs.gov.au/how-to-engage-us-subsite/files/assistance-access-bill-2018/australian-lawyers-for-human-rights.pdf.

[8] Ibid

[9] Department of Home Affairs. 2019. FAQ - The Assistance and Access Act. [ONLINE] Available at: https://www.homeaffairs.gov.au/nat-security/files/assistance-access-act-faq.pdf.

[10] Monique Mann. 2019. The devil is in the detail of government bill to enable access to communications data. [ONLINE] Available at: https://theconversation.com/the-devil-is-in-the-detail-of-government-bill-to-enable-access-to-communications-data-96909.

[11] Ibid

[12] Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018, Sch 1, s 317ZG.

[13] Robert Merkel. 2019. Encryption: for the majority of us, life goes on. [ONLINE] Available at: https://www.smh.com.au/national/encryption-for-the-majority-of-us-life-goes-on-20181210-p50l8r.html.

[14] Department of Home Affairs. 2019. FAQ - The Assistance and Access Act. [ONLINE] Available at: https://www.homeaffairs.gov.au/nat-security/files/assistance-access-act-faq.pdf.

[15] Ibid