The government, with the help of the Labor Party, passed the Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020 under the cover of Covid.
It was advertised as a noble cause and essential step for fighting child pornography in an increasingly anonymous internet. This made it difficult for political parties to argue against the Bill without sounding like they were deliberately protecting paedophiles.
In politics, things are never that simple.
While the Australian Federal Police (AFP) and the Australian Criminal Intelligence Commission (ACIC) have a genuine need for expanded powers in their pursuit of serious online crime, the Bill failed to limit these powers to the specific crimes passionately argued for in the Bill’s speech, read by the Minister for Home Affairs Peter Dutton.
“The Identify and Disrupt Bill 2020 will enhance the powers of the Commonwealth law enforcement agencies to help combat serious crimes perpetrated using anonymising technologies and the dark web,” said Dutton.
“Online anonymity, combined with less-traceable crypto-currencies, allows criminals to trade in the most abhorrent online marketplaces with perceived immunity.”
He goes on to frame the Bill in relation to the Australian Centre to Counter Child Exploitation (ACCCE) and their joint efforts with the AFP to shut down anonymous pay-per-view and livestream child exploitation gangs.
All of which most Australians would agree is a worthwhile cause and reason enough to expand police powers in the interest of uncovering these networks.
Unusually, Labor supported the Coalition.
“The cyber-capabilities of criminal networks have expanded, and we know that they are using the dark web and anonymizing technology to facilitate serious crime, which is creating significant challenges for law enforcement,” said Labor MP Andrew Giles.
In short, the Bill makes changes to the Surveillance Devices Act 2004 and Telecommunications (Interception and Access) Act 1979.
The least controversial of which is the Controlled Operations amendment, which simply acknowledges that police cannot be expected to take possession of all criminal material (such as digital photos) at the conclusion of the investigation.
In addition, police have three new warrant powers against cybercrime:
Data Disruption Warrant – which controversially allows officers to intercept digital information. The data can then be copied, deleted, added to or altered in any way police see fit.
The intended purpose is to grant police the power to delete criminal images of children from computers or add tracking software to follow the images to other criminal computers.
Unfortunately, that is not what the legislation says.
By leaving out the definition of when such a warrant could be exercised, there is nothing to stop warrants being granted in pursuit of other cybercrimes, particularly terrorism where ‘terrorism’ can include any political movement that intends to cause harm.
Given the rhetoric from state premiers and police regarding Freedom Rally protesters, there is cause for concern that this legislation could be turned against legitimate political dissent.
Others are rightly worried that the ability for police to anonymously add incriminating data to a person’s computer could lead to them being charged with offences they did not commit.
Network Activity Warrant – this is a search warrant for all digital assets involved in the investigation. The main difference in power here is that police have shifted from the ordinary gathering of evidence to gathering intelligence.
Police have the power to search your digital possessions to confirm that their warrant is valid, rather than having to prove they have a valid warrant before conducting the search.
Account Takeover Warrant – is exactly what it suggests. Police can takeover a digital account to access data and interact with data on other accounts. On its own this warrant does not allow police to impersonate the account, only access its data.
Is this expansion of police power likely to end child exploitation online? It’s doubtful. Police resources lag a long way behind criminals involved in dark web syndicates, although it may make it more difficult for them to operate.
The most obvious application of these powers is to increase the arrest rate of low-tech criminals operating under basic anonymity.
Given that these powers interfere with previously sacrosanct privacy protections, there were many scathing reviews of it in various committees along with complaints submitted by service providers and online digital platforms like Amazon and Twitter.
Over thirty recommendations were made by the Advisory Report, including oversight powers for committees and stricter conditions on when these warrants could be issued. There were also efforts made to reduce the ability of police to damage equipment belonging to innocent third parties.
The human rights issues regarding privacy were not resolved before the Bill was put to the vote. Several institutions, including the Queensland Council for Civil Liberties, Liberty Victoria, Electronic Frontiers Australia, and the Australian Privacy Foundation wanted it withdrawn until Australia established a robust federally enforceable human rights framework.
Silicon Valley isn’t happy either – this might explain why Twitter set this Bill as an ‘event’ last night, despite there being very little organic chatter.
Twitter insists that if they were to comply with the increased police powers and allow the AFP to interact with their private data during the execution of a warrant, it would leave the company in violation of international laws regarding consumer privacy.
Twitter wished to, “Amend the Bill to reflect practices that are consistent with established norms of privacy, free expression, and the rule of law.”
All Australia can do now is wait and see if police behave themselves with these new powers.