A close eye needs to be kept on agencies' use of interception and stored communications, not only to protect citizens' privacy, but to ensure that any evidence obtained can be used.
Yesterday, two reports were released by the attorney-general on telecommunications interceptions and surveillance. Taking a peek through the telecommunications report today, it was obvious that interception and the retrieval of stored communications were powerful tools for law enforcement, if expensive. A stored communication, such as an email, can only be accessed without the knowledge of the sender or recipient of the communication through a warrant. In 2010/2011, there were 300 requests for stored communication warrants (of which two were declined) and 91 arrests made following access to the communications, according to the attorney-general's report.
In addition to providing such statistics, the attorney-general made reference to a number of reports made by the Commonwealth Ombudsman on agency use of data gathered under telecommunications interception or stored data warrants. The ombudsman generally found the agencies compliant, although there were a few slips, for which recommendations had been provided.
When it came to stored communications, however, the ombudsman identified a "systematic" issue of agencies not being able to know when exactly a carrier had accessed a stored communication on their behalf under a warrant.
For 168 of 283 warrants issued in 2009/2010, the agencies didn't have any information on whether the information had been lawfully accessed or not. The ombudsman suggested a legislative change to try and fix this, but the attorney-general said that work was continuing on the issue.
Access to stored communications did definitely occur in eight of 283 warrants after they had expired, while the information of seven people were accessed who weren't mentioned on a warrant or hadn't committed a serious contravention, which is necessary for the issuing of a warrant.
The last two statistics are concerning because we shouldn't have people's private communications opened to law enforcement without due process. While the number is low, the first statistic is particularly concerning. It seems to me that for over half of all warrants issued in 2009/2010, the usability of the evidence gathered is questionable because agencies aren't sure if it was lawfully accessed during the time the warrant was valid. I would surmise that this would open the door to criminals to get themselves off charges, which is not an ideal situation.
New legislation has just been put into place that will see carriers obliged to preserve data for certain individuals of interest to authorities for a certain period of time; the authorities can then be certain that the data will be there, to be accessed if they obtain a warrant.
This won't change the fact that warrants and the requirement to preserve data can expire. According to the new legislation, a domestice preservation notice:
a. comes into force when the carrier receives it; and
b. ceases to be in force at the earliest of the following times:
- the end of the period of 90 days, starting on the day the carrier receives it;
- if the notice is revoked under section 107L — when the carrier receives notice of the revocation;
- if a Part 2-5 warrant or stored communications warrant authorising access to the stored communications covered by the notice is issued in relation to the issuing agency — when the warrant ceases to be in force;
- if a Part 2-2 warrant authorising access to the stored communications covered by the notice is issued in relation to the issuing agency — the end of the period of five days after the day the warrant was issued.
So careful consideration of timing will still need to be taken into effect if we don't want to let criminals off the hook, with systems implemented to help our only too human law enforcement officers.