Intercepting communications – now and then

As I mentioned in my preceding post, I’ve been at Committee hearings in Sydney and Darwin this week examining two proposed pieces of legislation – one to provide compensation to members of the Stolen Generations, and one which seeks to restore euthanasia laws in the Northern Territory. Being private Senators Bills (that is, not from the government), neither of these Bills are very likely to pass in the near future. However, the same Senate Committee is also examining legislation amending the controls over telecommunications interceptions by law enforcement agencies – the Telecommunications (Interception and Access) Amendment Bill 2008, which is likely to be voted on by the Senate next month.

The government’s Bill seeks to remove the current requirement for law enforcement agencies to have to get a fresh interception warrant every time they want to intercept or monitor more devices likely to be used by an identified person, beyond those outlined in the initial warrants authorising interception of communications by that person.
One can argue the merits or otherwise of this move, but it always makes me more suspicious (not to mention irritated) when – as on this occasion – the government tries to pretend that they are just fixing up ‘drafting errors’ or merely ‘clarifying’ what was allegedly the original intent of previous changes. I suppose I can’t be absolutely sure what the intent of the government was when they put forward previous amendments to the law covering interception powers in 2006, but I am sure the government can’t unilaterally assert what the intent of parliament was when it passed them.

Given I was in the parliament which passed the previous changes, I can very safely say that the intention of the parliament was likely to be based on the actual words in the legislation before it, not on other things not expressed by those words that might have been in the mind of the government department that drafted them.

By coincidence, the Committee hearing followed on the heels of a few days of media speculation about government plans to enable private companies to monitor emails. Even though this isn’t part of the current Bill, a representative from the Attorney-General’s Department did address the matter in her evidence. When people such as 
Julia Gillard were talking about looking at ways to “protect critical infrastructure”, she was talking about the infrastructure of IT networks and electronic information (such as banking systems and electronic records) and ways to better protect it from cyber-attack, not about monitoring the content of emails to see if someone is talking about bombing the Sydney Harbour Bridge.

On the broader issue of interception warrants, I was interested to read statistics contained in the submission by the Council for Civil Liberties, which said that “on a per capita basis, an Australian telephone was 23 times more likely to be bugged than an American telephone.” My instinct would have been that, if anything, it would have been more likely to be the reverse.  To quote more fully from their submission:

There is reason to be concerned that issuing authorities do not take the privacy requirement seriously before issuing warrants. Of 3,287 warrants sought in the year to June 2007, only 7 were rejected or withdrawn.2 (In the previous two years, the figures are six out of 2,889 applications and 5 out of 2,934.) Of 71 applications for B-Party warrants (the most intrusive form of surveillance) none were rejected.3 The total number of warrants issued in 2006-2007 is greater than that in the 2005-2006 year, when it exceeded the total number of equivalent warrants issued in the United States (2,929 in Australia as opposed to 1,839 in the United States).4 An analysis of the figures shows that in 2005-2006, on a per capita basis, an Australian telephone was 23 times more likely to be bugged than an American telephone.

It is also worth noting that in the United States only judges may issue
telecommunications warrants, while in Australia, almost all warrants (93%) are issued by non-judges. This is despite the fact that judges make up almost 60% of all the people authorised to issue warrants in Australia. The vast majority of warrants are being issued by lawyers who sit as members of the Administrative Appeals Tribunal (AAT). AAT members do not have tenure, are appointed by the government and work on contract. This means that AAT members are less likely to be as fearless as a judicial officer, which might explain why most warrants are issued by non-judges. Judges simply would not issue so many warrants: as is evidenced by the figures in the United States of America, where only judges may issue warrants and the per capita figures are vastly lower.

In the year to June 2007, of 3,280 warrants issued, only 33 were for terrorism prevention. For all the cases where life is in danger (terrorism, kidnap, murder and serious personal injury of loss of life), only 928 warrants were issued, or 28% of the whole. The remaining 2,349 were issued in connection with lesser (though mostly serious) offences (1,494 of them being drug offences).

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  1. Wish i could trust them on it, too. Hope is not another excuse for hunting down whistleblowers and the like.

  2. Senator Bartlett:

    There are arguments for and against intercepting phones calls and e-mails and for and against reading other people’s mail or for keeping them under surveillance.

    There are arguments, too, over the reliability and usefulness of information obtained in these ways – and there always will be, I suppose.

    There is one thing that sticks out like the proverbials and that is that if the party receiving the attention suspect for a moment that their letters and e-mails are being read covertly, or that somebody else is listening to their conversations or that they are under survellence …. they will have two powerful weapons to use against you: disinformation and deception. I don’t give a damn what assurances intelligence experts try to give you and your fellow Senators – if those being watched have even the slightest inkling that they are being watched at all, they will take great delight in leading you a merry dance up every blind alley and after every red-herring.

    An anectdote: During the chemical agents scandal a quarter-century ago, we became aware that the government [that had made itself our enemy] had items of information that could only have come from intercept or surveillance [whether legal or illegal; formal or informal – it didn’t matter to us]. For some days, we had a ton-of-fun churning out all sorts of misleading garbage. [Unbeknown to us, one of our own number was a renegade – but it was some time before his dobbing nullified the fun we had].

    The point is, if a disorganized bunch of raw amateurs can cause mischief once they became aware they were being watched …. just think of how disruptive and time-wasting well-trained and well-resourced agitators and terrrrorysts could be.

    Controlled, disciplined interception and surveillance do have a place in developing useful, accurate and timely intelligence ….but please be very very sceptical of all marvellous claims about the wonders of interception and surveillance.

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