Australian Government Scrambles to Authorize Mass Surveillance

Jeremy Malcolm
Electronic Frontier Foundation

This week, Australian Prime Minister Tony Abbott used recent terrorist threats as the backdrop of a dire warning to Australians that “for some time to come, the delicate balance between freedom and security may have to shift. There may be more restrictions on some, so that there can be more protection for others.”

This pronouncement came as two of a series of three bills effecting that erosion of freedoms made their way through Australia’s Federal Parliament. These were the second reading of a National Security Amendment Bill which grants new surveillance powers to Australia’s spy agency, ASIO, and the first reading of a Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill that outlaws speech seen as “advocating terrorism”. A third bill on mandatory data retention is expected to be be introduced by the end of the year.

Whilst all three bills in this suite raise separate concerns, the most immediate concern—because the bill in question could be passed this week—is the National Security Amendment Bill. Introduced into Parliament on 16 July, it endured robust criticism during public hearings last month that led into an advisory report released last week. Nevertheless the bill was introduced into the Senate this Tuesday with the provisions of most concern still intact.

In simple terms, the bill allows law enforcement agencies to obtain a warrant to access data from a computer—so far, so good. But it redefines “a computer” to mean not only “one or more computers” but also “one or more computer networks”. Since the Internet itself is nothing but a large network of computer networks, it seems difficult to avoid the conclusion that the bill may stealthily allow the spy agency to surveil the entire Internet with a single warrant.

Apart from allowing the surveillance of entire computer networks, the bill also allows “the addition, deletion or alteration of data” stored on a computer, provided only that this would not “materially interfere with, interrupt or obstruct a communication in transit or the lawful use by other persons of a computer unless … necessary to do one or more of the things specified in the warrant”. Given the broad definition of “computer”, this provision is broad enough to authorize website blocking or manipulation, and even the insertion of malware into networks targeted by the warrant.

Capping all this off, the bill also imposes a sentence of up to ten years imprisonment upon a person who “discloses information … [that] relates to a special intelligence operation”. Although obviously intended to throw the hammer at whistleblowers, the provision would apply equally to journalists. Such a provision could make it impossible for Australians to learn about the activities of their own government that infringe international human rights laws.

All in all, this sweeping bill would hardly be out of place in the NSA’s pantheon alongside the USA PATRIOT Act. But unlike the United States, Australia does not have a written Bill of Rights in its Constitution, making its freedom-abridging laws even harder to challenge in court.

Nevertheless Australia is a signatory to all major regional and global human rights instruments including the International Covenant on Civil and Political Rights which provides that “No one shall be subjected to arbitrary or unlawful interference with his privacy”, and that “Everyone shall have the right to freedom of expression”. Australia, like all other nations of the world, is also addressed by the Necessary and Proportionate Principles that provide more detailed guidance on how to apply international human rights standards in the context of communication surveillance.

It is far from clear that a proper balance can be struck by rushing this draconian bill through Parliament at a time when elevated fear of terrorism may lead to important civil liberties safeguards being forgotten or deliberately overruled. Australians should call on their government, before it is too late, to withdraw this bill for further consideration. If not, this may mark the week in history when it became easier for the Australian government to surveil and manipulate the Internet at will.

References:

Data Retention as Mass Surveillance An Australian Perspective: A contribution to the Necessary and Proportionate Week of Action http://www.rogerclarke.com/DV/DRPS.html

13 Principles Week of Action: Fighting Surveillance Law in Australia https://www.eff.org/deeplinks/2014/09/australians

13 Principles Week of Action: While Australia Shirks Its International Human Rights Obligations, Australians Wait On The Rest Of The World to Act https://www.eff.org/deeplinks/2014/09/13-principles-week-action-while-australia-shirks-its-international-obligations

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