Encryption laws expose ‘issues’
Technology companies and legal experts say there is an “explosion of issues” posed by new laws that will enable security and intelligence agencies to demand access to encrypted messages to investigate serious crimes.
Under the new laws, crimefighting bodies will be able to force technology companies to help them access encrypted messages sent using apps such as WhatsApp, Wicker and iMessage.
Legal experts have questioned whether the legislation will be enforceable against technology companies based overseas, and warned that some companies asked to provide assistance could potentially be in breach of privacy and other laws in their countries if they agree to provide assistance to the Australian government.
Technology firms also warned yesterday the laws could hurt local companies trying to export their products overseas and discourage foreign companies from setting up in Australia.
Journalists have raised concerns police could use the new powers to access encrypted messages from confidential sources.
A spokeswoman for Home Affairs Minister Peter Dutton last night brushed aside concerns the laws would not be enforceable against overseas companies.
“Companies which provide their technologies for use in Australia are subject to Australian laws,” she said.
“Companies that do not comply with a technical assistance notice or technical capability notice will face a maximum penalty of $10 million.”
Opposition legal affairs spokesman Mark Dreyfus said Labor acknowledged there were “legitimate concerns” with the legislation, which is why it had secured an agreement for amendments to be debated in the first sitting week of next year and for the laws to be referred immediately to parliament’s joint intelligence committee.
Law enforcement agencies will have new powers to ask a company to help voluntarily; or force a company to provide assistance, for example by decrypting a specific message; or to build a new function to enable an agency to obtain access to certain communications.
The powers will be available to investigate serious crimes including terrorism, child-sex offences and any other offences that carry a maximum jail term of three years or more.
The agencies that have been given the new powers are ASIO, the Australian Secret Intelligence Service, the Australian Signals Directorate, the Australian Federal Police, Australian Criminal Intelligence Commission and state and territory police.
State crime commissions and state anti-corruption agencies have been excluded from the legislation because of opposition concerns those bodies did not have the appropriate technical expertise and oversight arrangements to exercise the powers.
The laws were rushed through parliament late on Thursday, the last sitting of the year.
Queensland University of Technology professor of law Matthew Rimmer predicted large tech companies would try to challenge any order for assistance in court.