Australia's spy agency to get power to tap unlimited devices

Legislation that is likely to pass the Australian parliament this week will allow ASIO to get a warrant for access to an unlimited amount of devices, Attorney-General George Brandis has confirmed.
Written by Josh Taylor, Contributor

Attorney-General George Brandis has said he is not in favour of limiting the amount of devices Australia's peak spy agency can access under a single warrant because he cannot determine what their requirements may be in the future.

The legislation, first introduced back in June, rapidly expands the powers the Australian Security Intelligence Organisation (ASIO) has under warrants over tapping computers.

The proposal was vetted by a parliamentary committee, where it was warned by legal academics Keiran Hardy and Professor George Williams that the proposals could see every computer on the internet subject to a single warrant.

"I suppose the short answer is: The internet is a computer network, and it is commonly understood as such, and that is why there is some understandable confusion that attaches to these words, because clearly it ought not to be directed at that. But, if that is the case, you would want to see text in the legislation making that clear," Williams said.

Electronic Frontiers Australia's executive officer Jon Lawrence also warned that the legislation could be interpreted to mean the whole internet.

"It is quite arguable that the definition could be applied to the entire internet, given the way the legislation is currently worded. That will need some additional work to tie that down to what we believe the department is actually proposing."

But despite the warnings, the amendments proposed by the committee did not seek to place a limit on the number of devices ASIO could access under the legislation, and the government rejected an attempt by Greens communications spokesperson Scott Ludlam to amend the legislation to put a limit on the scope of the warrant.

"The simple interpretation is this: In expanding the definition of a computer to include a network or networks, you have effectively created an open-ended power for the exercise of a single warrant to, in theory, at least, to include anything connected to that device and anything connected to devices connected to that," Ludlam said in parliament yesterday.

"The internet obviously being a network of networks, I am not sure whether the government anticipates a maximum number of devices, for example, being mandated in these warrants."

Brandis told the Senate yesterday that a limit would be "wholly unworkable" and that it would "frustrate the ability of ASIO" to do its work.

"How can anyone — certainly, how can Senator Ludlam — stand in the Senate today and anticipate what the needs of ASIO will be in relation to warrant based computer access next year, or in 10 years time, or for however long this legislation exists?" Brandis said.

"The idea of saying today, in September 2014, that we know that in years to come there will never be a necessity for ASIO to have any more than a finite number of computer access warrants in operation is of course an absurdity."

He said at the time a warrant is issued, ASIO is "unlikely to know" what parts of a computer network will contain data relevant to the matter being investigated.

"With the variety and number of devices now commonly used as well as the increasing use of computer networks and remote storage, it is highly probable that data may be stored on a number of devices."

Brandis insisted ASIO would have to comply with the Attorney-General's guidelines that require ASIO to use "as little intrusion into individual privacy as possible" meaning that the way ASIO obtains information needed to be "proportionate to the gravity of the threat posed".

Additionally, the attorney-general of the day can also impose strict conditions on the warrant at the time of it being granted including limiting the number of devices it covers, Brandis said.

"Limiting computer access warrants in the way the Greens propose would produce, as I said before, an absurdity," Brandis said.

"It would create a significant loss of ASIO's capability — perhaps that is Senator Ludlam's motive. It would be irresponsible in the extreme to seriously entertain that notion."

The legislation boosting ASIO's powers is the first of what Brandis said will be three "tranches" of national security legislation. The second tranche relating to so-called foreign fighters returning from places like Syria is before parliament this week.

The third, most controversial, tranche of legislation that will force telecommunications companies to retain customer data for two years on behalf of government agencies to access without a warrant will be entered into parliament later this year.

Editorial standards