There is no doubt that the existing Telecommunications (Interception) Act is outdated. Legislation to amend this Act has been put forward by the government and is due to be debated this week. A Senate Committee report has just been tabled, which can be found through this link, along with submissions and transcripts of evidence.
The matters contained in the legislation are often technical, but some of the key aspects include:
a) rules governing access to stored communications held by a telecommunications carrier;
b) enabling the interception of communications of a person known to communicate with a person of interest (the so-called ‘B-party interception warrants’);
c) enabling interception of telecommunications services on the basis of a telecommunications device;
d) removing existing distinctions governing offences for which various telecommunications interception powers are available to law enforcement agencies.
Many of these powers already exist in various ways, so to the extent that the powers are clarified, (as opposed to expanded), this is a good thing.
The area that causes me most concern is the ‘b party’ warrants, where a person who is not a suspect can have a warrant issued to intercept their communications where they may have communications with someone who is a suspect.
The Bill will allow the Government to read our private emails, SMSs and other stored communications, without our knowledge. The power will extend even to innocent people, called B-parties, if they have been unlucky enough to communicate with someone who is suspected of a crime, or of being a threat to national security.
The Government should sometimes be able to monitor the communications of innocent people. This may be necessary to protect the wider community, where a suspect can only be tracked down through another person. However, the Bill goes far beyond what can be justified and undermines our right to privacy more than is needed to properly enforce the law.
Our key concerns are that, first, the Government will be able to collect not only the communications between the B-party and the suspect, but also communications between the B-party and anyone else…… no matter what you spoke about. Your most private and intimate conversations could be pored over, without your knowledge, by people you have never met.
Second, in some circumstances the Government can use the information it collects even though that information is irrelevant to the original suspect.
Third, the Bill sets a very low threshold for ASIO to be granted a warrant.
Fourth, the threshold that ASIO must satisfy uses general terms, such as ‘likely to assist’ and ‘relating to security’.
The Committee’s report contains over 25 recommendations to improve the legislation, including some that go to the concerns raised above. It remains to be seen if the government will take up any or all of these.
The legislation has now passed. The government put forward some amendments and have claimed that these reflect acting on 11 of 28 receommndations from the Senate Committee report. I don’t know the detail well enough to know how accurate this claim is, although past experience means I am sceptical.
A short report in the Sydney Morning Herald can be found here. As noted in a comment below, there is also an item on Club Troppo about this issue, as well as a follow up piece.
George Williams & David Hume have done another article assessing the impacts of the final version of the legislation.
A further issue is how the law distinguishes between stored and real-time communications such as telephone conversations. It is easier to monitor stored communications, apparently because they are seen as less private than telephone conversations. However, now that telephone conversations often occur in public on mobile phones, many people reserve their most personal interactions for email and text messages. It is nonsensical that our personal affairs are made less private because they are in an email rather than said over the phone.
These problems have been compounded because the Government rushed the law through Parliament without taking into account advice from its own ranks. A Senate committee examining the bill unanimously found last Monday that the powers were too extensive. It recommended strengthening protection against misuse. The Government’s own Blunn report on the area also suggested stronger protection. Despite these warnings, the law does not incorporate the recommended safeguards. Indeed, amendments made to the law over the past week widened its reach.