The United Nations Special Rapporteur on the right to privacy has called for Australia’s Assistance and Access Bill to be set aside, and a new approach to be taken to addressing the challenges faced by law enforcement from the use of encryption.
“The Assistance and Access Bill is unlikely to be workable in some respects, and is an unnecessary infringement of basic liberties in other,” Cannataci wrote in a submission [PDF] to the Parliamentary Joint Committee on Intelligence and Security. “Its aims do not justify a lack of judicial oversight, or independent monitoring, or the extremely troubling lack of transparency.
“This Bill needs to be put aside. It is fatally flawed.”
Cannataci said the Bill is an example of “a poorly conceived national security measure that is equally as likely to endanger security as not”, and that it is technically questionable whether it can achieve its aims without introducing vulnerabilities.
The Special Rapporteur was dismissive of the oversight and transparency measures in the Bill, particularly the lack of judicial oversight and the ability for heads of agencies to approve actions by their own people.
“It is asserted that ‘The people who occupy these positions are trusted to exercise suitable judgment about the propriety of requests and well equipped to consider the reasonableness and proportionality of any requirements’,” Cannataci wrote.
“While heart-warming that such a state of trust exists in Australia, greater confidence would be generated in domestic and international quarters if the legislation established an independent mechanism that verifies proper conduct and use of far-reaching power by decision makers.”
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Cannataci echoed concerns that a lack of privacy protections in Australia could see the nation be used a conduit for other countries to gain data.
“In the absence of a prohibition on or independent oversight to approve such requests, it will be important to establish conclusively that Australia is not becoming a ‘launderer’ of international requests for data,” he said.
On the technical front, the Special Rapporteur said it is “extremely questionable” whether access to encrypted content would be able to be restricted to one device.
“There are technical concerns around the assumption that it is possible to contain a vulnerability to one device or devices associated with one person,” he said. “The strong feeling is that ultimately, it would affect all users of that product and result in weaker security for everyone.”
Speaking last week, Director-General of Security at the Australian Security Intelligence Organisation (ASIO) Duncan Lewis said persistent monitoring would not fall under the auspices of the Assistance and Access Bill.
“In order to enable us to get through the encryption and understand what the content is behind the communication, it is very important we have the assistance of the company — nobody would be better informed as to how the system operates than the company themselves — but importantly it is not systemic, it doesn’t have an enduring time, it doesn’t have a breadth of — it’s not going to be ubiquitous across the community, it’s quite specific,” Lewis said.
Under the proposed law, Australian government agencies would be able to issue three kinds of notices:
- Technical Assistance Notices (TAN), which are compulsory notices for a communication provider to use an interception capability they already have;
- Technical Capability Notices (TCN), which are compulsory notices for a communication provider to build a new interception capability, so that it can meet subsequent Technical Assistance Notices; and
- Technical Assistance Requests (TAR), which have been described by experts as the most dangerous of all.
Under the proposed laws, Lewis would be able to approve requests and assistance notices for ASIO.
In consultation on the Bill, a number of submissions have called for increased judicial oversight and for protections existing for the issuing of TCNs to be extended to TANs and TARs.
The Office of the Australian Information Commissioner (OAIC) specifically asked for the judicial oversight and disallowing of systemic weaknesses to be extended to voluntary requests for assistance, particularly in the case of small providers that may not have the resources available to determine whether complying to a TAR would introduce a systemic weakness.
“If passed, the Bill would invoke exceptions to the Australia Privacy Principles,” the OAIC said.
The ASIO chief said that although he can issue a TAN, and would only need the approval of the attorney-general for a TCN, often a warrant would already be in place.
“The only time the attorney-general [would] be invoked in any way in that equation [in issuing a TAN] would be if request for assistance involved us then looking for content,” he said. “But to tell you the truth, it normally happens the other way around: We would get the warrant for the content, and then discover that we had to approach the company to access that content.”
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