Government yields on device spying bill

The Federal Government has abandoned plans to grant law enforcement agencies unfettered freedom to intercept communications from multiple devices that are not listed in a warrant, yielding to pressure exerted by the privacy lobby.
Written by Brett Winterford, Contributor

The Federal Government has abandoned plans to grant law enforcement agencies unfettered freedom to intercept communications from multiple devices that are not listed in a warrant, yielding to pressure exerted by the privacy lobby.

The Government's proposed amendments to the Telecommunications (Interception and Access) Bill would have granted law enforcers such as ASIO and State and Federal Police a "blank cheque" to intercept communication on multiple devices, regardless of whether they were listed at the time a warrant was approved.

At present, law enforcement agencies are only permitted to obtain a warrant for a single device, based on a unique identifier (such as a MAC address or International Mobile Service Identifier) that connects that device to a suspect.

Law enforcement agencies have long argued that this limitation was problematic, as criminals could easily swap SIM cards and laptops to avoid being monitored and caught.

In response to these concerns, a clause granting agencies more flexibility in adding devices to a warrant was included among a series of amendments to the Telecommunications (Interception and Access) Act, which was introduced by the Attorney General in February.

Upon being introduced to Parliament, Attorney General Robert McClelland said that the bill "contains no new powers for security or law enforcement agencies in relation to telecommunications interception".

But the privacy lobby and legal groups, backed by the Democrats, disagreed — and pointed out that clauses within the amendment would grant law enforcement agencies far wider scope to include "any" telecommunications device on a warrant pertaining to a single individual.

Their protests led to a Senate Committee being set up to review the Bill. Submissions from such parties as the Law Council of Australia, the Office of the Privacy Commissioner, The Australian Privacy Foundation and lobby group Electronic Frontiers Australia, argued that the proposed amendments, in the words of the Law Council's submission, "will result in yet another incremental expansion in the telecommunication interception powers of ASIO and law enforcement agencies."

"We believe that the risk of intercepting agencies covertly accessing communications wholly unrelated to their investigations, and including communications between parties with no connection to their investigations, is too great," stated a submission from the Australian Privacy Foundation.

The Senate Committee Report subsequently found that the Government's proposed amendment was too broad in scope.

The Committee recommended that under circumstances in which law enforcement agencies urgency require warrants on multiple devices, that they be permitted to do so — but that they would be held accountable for doing so retrospectively. In other words, they could add additional devices to a warrant for a single device, but would have to justify that addition to a higher authority within two days.

In response, the Rudd Government has now made a significant concession. In a revised amendment introduced today, the legislation will allow for multiple devices on a single warrant, but will require law enforcement agencies to identify all devices that will be subject to interception prior to the issue of a warrant.

The Democrats are calling the Government's concession a "win" for privacy.

"The Government has now proposed amendments to their bill to ensure agencies will have to identify all devices that are the subject of a warrant, and removing changes that would have granted agencies a blank cheque to add multiple devices at will," said Democrat Senator Natasha Stott Despoja.

Law enforcement agencies will no doubt be frustrated by the Government's capitulation to the privacy lobby. In submissions to the Senate Committee, the Australian Federal Police supported the amendment as it stood, arguing that its staff would provide the same checks and balances on any additional device listed on a warrant as the original device specified.

All the amendment would have done, said Victorian Police Commissioner Christine Nixon, is provide the means to obtain evidence "in a more timely manner than is currently possible".

The Democrats maintain some concern as to whether there are enough obligations on the part of the law enforcement agency to prove that its information about ownership of a device is accurate before obtaining a warrant and whether the available technology will allow an accurate identification.

The party is now seeking to put forward a further amendment to the Act, based on a recommendation by the Senate Committee — that the agency's spying powers are subject to a statutory review every five years.

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