En­cryp­tion laws ex­pose ‘is­sues’

The Weekend Australian - - THE NATION - NI­COLA BERKOVIC LE­GAL AF­FAIRS COR­RE­SPON­DENT

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.

Dut­ton

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