Law Council worries encryption-access bill side-steps need for warrants

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The encryption-access bill currently before Parliament is plagued with several issues, including the possibility that it will allow authorities to side-step warrants previously needed to access private information.

The concerns were raised on Friday by Arthur Moses SC, president-elect of the Law Council of Australia, during the first public hearing of the joint parliamentary committee examining the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018.

While there is significant value in authorities having faster access to encrypted information, the nation’s top lawyer body believes the bill requires significant amendment.

“The bill will authorise the exercise of intrusive covert powers with the potential to significantly limit an individual’s right to privacy, freedom of expression, and liberty,” Moses said. “It would allow law enforcement agencies and ASIO to make ‘technical assistance requests’ or ‘voluntary assistance requests’ on designated communications providers.”

“Under these requests, a provider may be asked to undertake certain acts or things, including telecommunications interception, for which authorities would otherwise require a warrant,” he said. “It is our strong concern that these requests could side-step the need for a warrant. Where law enforcement or intelligence agencies would otherwise require judicial or Administrative Appeals Tribunal, or Ministerial authorisation or approval, they should not be able to make a voluntary assistance request or a technical assistance request.”

Moses told Parliament that it is hard to imagine service providers refusing a “written request” from authorities. He also said that bill could lower thresholds required for telecommunications interception by use of computer access warrants. Authorities may also be allowed by the bill to use force against persons or things to engage in telecommunications interception. 

The president-elect also raised other concerns, including that law enforcement or ASIO could effectively detail individuals required to provide compulsory assistance.

“If a person is required to attend a place to provide information or assistance this may arguably amount to detention of that person, particularly as they may be arrested on suspicion of an offence if they attempt to leave,” he said. “Appropriate safeguards need to be in place for detention. Detained people should be allowed to contact a lawyer or family member, for example.”

“There should also be prescribed maximum periods for giving assistance, requiring an explanation of legal rights and responsibilities, and the availability of interpreters where required,” he said.

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