WA Police seeks clarification on what it can access under production orders Bill

While it supports the International Production Orders Bill, the WA Police Force said the proposed provisions are likely to have a significant resourcing impact.

The Western Australia Police Force (WAPOL) are seeking further clarification on what exactly it would have access to under the nation's Telecommunications Legislation Amendment (International Production Orders) Bill 2020.

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In a submission [PDF] to the Parliamentary Joint Committee on Intelligence and Security (PJCIS) and its review of the Bill, WAPOL said it would benefit from being able to obtain interception, stored communications, and telecommunications data for investigations and intelligence-gathering purposes.

However, it wants more information and guidance as to what services are able to be intercepted from overseas carriers, particularly those based in the US.

"If the restrictions imposed by encrypted services (such as WhatsApp, Viber, Facebook Messenger) may be overcome to enable live interceptions, we expect that the IPO framework under the Bill will provide law enforcement with a highly valuable investigative tool," it wrote.

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

The Bill is intended to amend the Telecommunications (Interception and Access) Act 1979 (TIA Act) to create a framework for Australian agencies to gain access to stored telecommunications data from foreign designated communication providers in countries that have an agreement with Australia, and vice versa. It would also remove the ability for nominated Administrative Appeals Tribunal members to issue certain warrants.

The Bill is a precondition for Australia to obtain a proposed bilateral agreement with the United States in order to implement the US Clarifying Lawful Overseas Use of Data Act (the CLOUD Act).

Currently, requests for telecommunications data from companies in other countries are processed by local law enforcement through section 178 of the TIA Act.

Under the current legislative arrangement, the WA Police Force said it processed 614 requests for telecommunications data in 2019.

"In order to comply with the administrative requirements of obtaining a telecommunications IPO under the Bill, and without an increase in resources, the proposed provisions are likely to have a significant resourcing impact upon the WA Police Force," it added.

"The WA Police Force supports the framework provided within the Bill, however, we anticipate that additional resources will be required for the Bill to be effective."

Under the Bill, six Commonwealth agencies and 15 state and territory agencies would be able to gain access to data and information held overseas under each of the three international production orders (IPO) regimes.

In its own submission to the PJCIS, the Australian Privacy Foundation (APF) labelled the Bill as deeply flawed, saying it saw no real need for it to be put in place.

"The Bill is deeply flawed. It conflates bureaucratic convenience with what is imperative," the foundation said.

"It obfuscates accountability through inadequate transparency, including reliance on the under-resourced Commonwealth Ombudsman.

"It enshrines an inappropriate level of discretion and weakens parliamentary oversight regarding interaction with governments that disrespect human rights.

"It is a manifestation of a drip by drip erosion of privacy protection in the absence of a justiciable constitutionally-enshrined right to privacy in accord with international human rights frameworks."

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