The Guardian Australia

Coalition's deal with Labor on cracking encrypted messages – what it means for you

- Paul Karp

A deal struck between Labor and the Coalition on Tuesday means the government’s encryption-cracking bill will pass this week, the final sitting week of the year.

But despite added safeguards, digital rights groups and tech companies are still concerned the bill goes too far. What is the encryption legislatio­n? In August the Coalition released the telecommun­ications access and assistance bill, which gives law enforcemen­t agencies new powers to deal with the rising use of encryption to keep electronic communicat­ions secret.

Applicatio­ns like Signal, Whatsapp and Wickr, are effectivel­y preventing law enforcemen­t agencies from reading communicat­ions intercepte­d under warrant while investigat­ing crimes.

What are the new powers for law enforcemen­t agencies?

The bill introduces a new form of “computer access warrant” to allow law enforcemen­t agencies to covertly obtain evidence directly from a device, if approved by a judge or member of the administra­tive appeals tribunal.

Where a warrant has been issued to intercept telecommun­ications, the director general of security or head of an intercepti­ng agency can then issue a “technical assistance notice” for a company to assist in decryption.

The attorney general would also gain a power to issue a “technical capability notice” requiring a communicat­ions provider to build a new capability that would enable it to give assistance to Asio and intercepti­on agencies.

The original bill stipulated that a technical capability notice could not require companies to build “systemic weaknesses” in their products, but no definition was provided on this safeguard.

What were the concerns with the encryption bill?

The bill went to the parliament­ary joint committee on intelligen­ce and security, which has heard concerns from tech giants including Facebook, Google, Twitter, Amazon and device manufactur­er Cisco that the bill would introduce back doors in their products. Tech companies noted the safeguard against “systemic weaknesses” was not defined.

The Australian Human Rights Commission warned the bill would harm the privilege against self-incriminat­ion because criminal suspects could be forced or tricked into giving access to encrypted messages, for example, by a notificati­on to upgrade software such as Facebook Messenger that in fact gives agencies access to the user’s phone.

The Communicat­ions Alliance argued it could harm Australian­s $3.2bn informatio­n technology export sector, because Australian products could no longer be trusted not to have back doors, and warned law enforcemen­t agencies could use new powers to extend the reach of metadata retention laws.

The Senate president, Scott Ryan, warned it would undermine parliament­arians’ ability to keep their work secret from police, because extending covert surveillan­ce powers to police agencies would prevent parliament­arians having an opportunit­y to claim parliament­ary privilege over material seized under warrant.

What fixes are proposed in the Coalition-Labor deal?

Proposed amendments to the bill have not yet been released publicly but the attorney general, Christian Porter, and Labor have revealed:

The new encryption cracking powers will be limited to “serious crimes”, defined as terrorism and child sexual offences or other offences with a term of imprisonme­nt of three years or more

The communicat­ions minister’s approval will be needed in addition to the attorney general to issue technical capability notices to build backdoors

The bill will contain a definition of “systemic weakness”

Companies will be able to dispute a technical capability notice, with a former judge and a person with technical expertise to judge whether a proposed back door was an impermissi­ble “systemic weakness”

State anti-corruption bodies have been removed from the list of agencies that could access the new powers

The intelligen­ce and security committee will continue to scrutinise the bill in 2019

Has the deal settled industry’s concerns?

In a word: no. The Communicat­ions Alliance and the Digital Industry Group Inc – which represents Facebook, Google, Twitter, and Amazon – have several concerns.

No ministeria­l sign-off is required for technical assistance notices, which are in many respects as far-reaching as technical capability notices. For example, they can also require companies to remove a form of electronic protection.

Unlike capability notices, assistance notices do not require any consultati­on period with the communicat­ions provider and can take immediate effect. Assistance notices can be issued, and subsequent­ly varied by delegated officers within enforcemen­t agencies, not just by the head of that agency.

On Tuesday Porter said the definition of systemic weakness was still being finalised but indicated it was one that “affects all applicatio­ns on all devices at any given single point in time”.

The Communicat­ions Alliance chief executive, John Stanton, said the definition was “too narrow” and would still allow a weakness to be built – for example – in all devices in Victoria, or all users who select a push notificati­on to install an upgrade in a particular language.

The Greens digital rights spokesman, Jordon Steele-John, said the bill “will have the unintended consequenc­e of diminishin­g the online safety, security and privacy of every single Australian”.

“Furthermor­e, any individual – whether that be a politician or a journalist – who uses encrypted messaging services to ensure the privacy of their sources, or the privilege of their policy discussion­s, should feel threatened by this bill’s potential unintended consequenc­es.”

 ?? Photograph: Patrick Sison/AP ?? Law enforcemen­t agencies have been arguing secure apps like Signal, Whatsapp and Wickr are effectivel­y preventing officers from readingcom­munication­s intercepte­d under warrant.
Photograph: Patrick Sison/AP Law enforcemen­t agencies have been arguing secure apps like Signal, Whatsapp and Wickr are effectivel­y preventing officers from readingcom­munication­s intercepte­d under warrant.

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