The government’s approach to technological surveillance is leading us down a dark path, experts warn, as it prepares to give law enforcement agencies new hacking powers.
Currently before parliament’s Intelligence and Security Committee, the Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020 is the government’s latest attempt to gain a watchful eye over cyber space.
Once the bill passes, it will dish out extra power to the Australian Federal Police (AFP) and the Australian Criminal Intelligence Commission (ACIC), giving the agencies access to new warrants that will let them modify and delete data, collect intelligence from online communities, and even take over the online accounts of supposed criminals.
Speaking at a webinar hosted by Electronic Frontiers Australia last week, senior lecturer in criminology at Deakin University, Dr Monique Mann, said the laws are just the latest in what she called a “hyper-legislative” approach to electronic surveillance.
“[These laws] represent, in my view, significant expansions of the existing powers of law enforcement agencies away from a traditional focus on investigation and the collection of admissible evidence of specific offenses to disruption, to attack, to take-over, to take-down,” Dr Mann said.
“These typically are powers that are reserved for the Australian Signals Directorate (ASD).
“Here the distinction between intelligence and evidence, and the activities of law enforcement and signals agencies is being eroded.
“This comes with democratic costs – impacts on liberties such as freedom of expression and freedom of the press.”
Since 2015, when the government passed its controversial metadata retention laws, law enforcement agencies have gained greater oversight into the digital domain of everyday Australians by rushing through the Encryption Bill late in the last parliamentary sitting day of 2018.
Both sets of legislation have continued to cause controversy with the tech industry warning that the encryption laws “significantly degraded the global reputation of the Australian tech sector” while reviews have found law enforcement misusing their metadata powers.
Lawyer and chair of the EFA’s policy team, Angus Murray, said the current “mess” of surveillance legislation – which is being added to with the Identify and Disrupt Bill – is broad, vague, and not fit for purpose.
“Legislation has to adhere to a parliamentary intention,” he said.
“An intention to introduce legislation that deals with child exploitation material or to combat terrorism that has a scope that is extremely widely defined – and, by the assistance and access legislation, amends the definition of ‘computer’ to effectively mean ‘the internet’ – puts us in a situation where firstly the scope and the full power of law is not actually understood.
“Secondly, the courts are left to guide the community in terms of how the law is ultimately applied.
“And thirdly, it’s unlikely this legislation will be repealed once it’s passed.”
The Richardson Review
The complexity of Australia’s existing surveillance legislation was firmly pointed out in the Comprehensive Review of the Legal Framework of the National Intelligence Community which was published in a de-classified format late last year after going through a year’s-long redaction process.
Commonly known as the Richardson Review, the lengthy four-volume, 1,300-page document outlines a much-needed overhaul of existing legislation and the creation of a new, modernised, Electronic Surveillance Act.
Dr Mann said to enact the full recommendations of the Richardson Review would in effect require the repeal and re-writing of “about 1,000 pages of existing telecommunications surveillance law”.
“The whole point leading to this review is because the Telecommunications Interception and Access Act, developed in 1979, has not kept up with the scale and pace of technological change, it needs to be updated, it’s no longer fit-for-purpose.
“I think moving forward, this landscape, in the Australian context, is going to be changing. It’s going to take time – a long time – to do a lot of that repealing and re-writing.”
Murray doesn’t share Dr Mann’s optimism, however, that the government will work to enact a consolidated Electronic Surveillance Act.
“In my view and experience, it isn’t ordinary for government to attempt to make things easier,” he said.
“The reason why it’s scattered out at the moment I think is to give power across a variety of bases.
“And law that’s confusing is law that can be applied without people appreciating its consequences.”