AFP vows to damage tech giant reputations if found obstructing law enforcement

Commissioner Reece Kershaw said 'all bets are off' if digital giants are found to be obstructionist.

Australian Federal Police (AFP) Commissioner Reece Kershaw has put digital giants on notice, saying he will not hesitate in damaging reputations if the companies deliberately obstruct law enforcement.

Kershaw, speaking at the National Press Club in Canberra on Wednesday, said there is more the digital platforms could do to help law enforcement.

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"It's a balance for the industry … if you're using these tools commercially, and being able to sell them, and so on, and market them that way, I think they can do more in this area. And they can let us in," he said.

"And maybe there's a day when we -- and we used to, we were embedded in Microsoft at one stage, and companies like that."

Kershaw expects the US Clarifying Lawful Overseas Use of Data Act (the CLOUD Act) to help Australian law enforcement work with international companies.

The CLOUD Act creates a legal framework regulating how law enforcement can access data across borders.

Under the Act, providers in Australia and the US will be able to respond to lawful orders from the other country for access to "electronic evidence".

A bilateral CLOUD Act agreement would enable Australian law enforcement to serve domestic orders for communications data needed to combat serious crime directly on US-based companies, and vice versa.

"We'll be able to be a bit faster in our country-to-country requests for evidence or breaking a website wide open, so to speak, without having to use what we call police-to-police, which is fine, but when you have to collect the evidence and secure it for an Australian prosecution, it can become quite challenging with these companies," he explained.

"We'd like to see them work faster for us in that area, because it slows down the judicial process."

Additionally, Kershaw expects the Act to open the capacity for law enforcement to challenge the digital giants on why they're allowing certain content to be hosted.

"We could probably give them the challenge to say, 'What are you going to do about it? You've actually got all these networks and criminals on your systems and your platforms, what are you going to do about it?'," he said.

"That conversation needs to continue on and I think they can do better -- and they should, they have to,"

The commissioner was asked what currently happens when such platforms are challenged.

"Some are pretty good. I think we've got a long way to go, though … they're commercial entities often and they're in it for profit, let's be honest about that, so that's an interesting conversation," he said in response.

"However, what we sort of say, and we'll probably move into this space -- I definitely will, if I'm feeling as though certain companies are not cooperating -- we will actually end up outing them and probably damaging their reputation."

Kershaw said it's one technique law enforcement has used before. 

"If you are a company that is going to be obstructionist with law enforcement and not help us out when it comes to protecting our children, all bets are off when it comes to that for us," he said.

"You probably will see that -- we sort of have, we just haven't had a loud enough voice, I think, collectively."

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