A National Security Measure?

 

The Bill was introduced by he Attorney General’s Department looking to ‘keep the community safe’ and the digest outlines three main points regarding the amendments to the TIA Act:

1. Terrorism and other serious crimes are increasingly planned or otherwise facilitated through use of electronic communications

2. Data about electronic communication is increasingly useful in identifying potential criminal acts, actual and potential criminals and proving criminality

3. Providers of telecommunication services do not have commercial incentives to retain data about communications for a sufficient period to enable law enforcement agencies to identify criminals and prove criminality (Law council submission 2014, p.6).

 

However there has been much debate about whether these claims are true, and can be sustained and this will be examined below.

 

Counter Terrorism Surveillance Measures

 

After 9/11 governments globally have been pushing initiatives in order to counter terrorism. Some governments have even rushed measures through Parliament in a climate of fear and urgency (Lachmayer & Witzleb 2014).

 

Additionally, nearly two thirds of Australian’s think the mandatory retention of data is justified in order to combat terrorism, according to a poll by the Lowy Institute. The telephone survey of 1,200 people found 63% thought “legislation which will require Australian companies to retain data about communications such as phone calls, emails and Internet usage, but not their content” was justified for national security reasons. The survey found that Australians appear to accept some infringements on their privacy in the interests of fighting terrorism and protecting national security.

According to the Attorney General’s Department, in 2005 ASIO prevented a mass casualty terrorist attack in Australia, which resulted in the conviction of 13 men on terrorism charges and sentences of up to 28 years. ASIO outline that telecommunications data was crucial to this successful outcome. Interestingly, this prevention occurred before the introduction of the amendments in 2015.

 

Along with law enforcement agencies, ASIO will be given wide ranging new powers to use computers of innocent third parties to gain access to a computer used by a suspected terrorist or criminal (Lachmayer & Witzleb 2014).

 

Law Enforcement

 

According to the Australian Federal Police (AFP) telecommunications data is the ‘cornerstone of contemporary policing’ as it allows the AFP to:

·      Identify suspects and/or victims,

·      Exculpate uninvolved persons,

·      Resolve life threatening situations like child abduction or exploitation,

·      Identify associations between members of criminal organisations,

·      Provide insight into criminal syndicates and terrorist networks, and

·      Establish leads to target further investigative resources (AFP, Submission 7.1, p. 3.)

 

Access to telecommunications data has helped during a EUROPOL child exploitation investigation. The United Kingdom was able to use the retained telecommunications data authorised by their legislation to convict 121 of 371 possible suspects. This is contrasted to Germany, who did not have a data retention regime in force, and were only able to identify 7 of 377 possible suspects. This highlights the successful use of data retention in order to help prosecute and maintain law enforcement.

 

Professor George Williams and Dr Keiran Hardy with the Centre of Public Law at the Faculty of law, UNSW also expressed their support for data retention. “We recognise the importance of standardising the collection of data by communications service providers. Given that telecommunications data can play an important role in investigating serious criminal offences such as terrorism and child pornography…” However, they highlighted the need for a clear and codified legislative scheme, which has been argued that the new amendments doesn’t satisfy.

 

The growing need to access telecommunications data has increased over the years. In 2012, there were 319,874 authorisations for access to existing information or documents were made in the enforcement of a criminal law alone (Lachmayer & Witzleb 2014 p. 769).  And in 2012-2013, more than 80 Commonwealth, State and Territory enforcement agencies accessed historic telecommunications data under the TIA Act. Resulting in 330,640 authorisations with 546,500 disclosures. Plus the number of ASIO data authorisations are not publicly reported due to national security grounds, which means that the access to information could be much higher.

 

Warrantless Access to Telecommunications Data

 

Part IV, telecommunications providers are obliged to hand over communications metadata to numerous Commonwealth and state government departments and agencies if the information is ‘reasonably necessary’ for a law enforcement purpose and the disclosure is approved by an authorised senor officer of the relevant agency (Lachmayer & Witzleb 2014).

 

Countries such as Denmark, Greece and Spain require police forces and security agencies to get a warrant before they access communications data. The main reason why the AFP does not want to introduce warrants into the process is because their process and operations would “grind to a halt.” Additionally they stated the cost of requesting a warrant to access data might cost $25 million a year (Keane, 2015).

 

However, there is one exception introduced in order to protect the privacy of sources for journalists. Data retention significantly increases the chances of governments locating whistleblowers and sources of news stories. A last minute amendment saw the inclusion of the need to request a warrant when accessing journalistic sources. 

 

Safeguards

 

Many who support the amendments to the TIA Act, only support them on the basis that safeguards to protect individuals privacy will be in place.  The safeguards listed (here), include measures such as establishing Public Interest Advocates (PIAs) and a mandatory review within three years. However, they are not outlined within the act. In fact, the act does not require records to be kept regarding authorizations for access to telecommunications data, and whether it has lead to a number of arrests, prosecutions and convictions. On this basis, it can be difficult to determine the true value of telecommunications data in terms of reducing crime. In fact Germany have scrapped their data retention laws due to the lack of results in reducing crime.