Media Release

31 March 2004

Telecommunications interception law dispute shows law needs overhaul

The Senate Legislation Committee has recommended deferral of proposed changes to telecommunications interception laws until after a disagreement between the Australian Federal Police ("AFP") and the Attorney-General's Department is resolved and the Parliament informed accordingly.

The Committee's report on their inquiry into the Telecommunications (Interception) Amendment Bill 2004 was tabled in the Senate on Tuesday (30 March).

The Bill is intended to clarify the existing law to ensure that law enforcement agencies ("LEAs") are required to obtain a telecommunications interception warrant before intercepting email, SMS and voice mail messages that are temporarily delayed and stored during passage over a telecommunications system.

During the Committee's inquiry, the Australian Federal Police and the Attorney-General's Department said they disagree about the current operation of the interception regime and how it would operate under proposed changes. The AFP base their opinion on advice of the Commonwealth Director of Public Prosecutions while the Attorney-General's Department base their opinion on advice of the Solicitor-General.

Electronic Frontiers Australia ("EFA") said they support the general intent of protecting stored communications in a similar manner to telephone calls but consider the Bill as written will not clarify the law and will have unintended and undesirable consequences.

"The disagreement between government agencies is highly disturbing," said EFA Executive Director Irene Graham. "In our view the public is entitled to know under what circumstances their private communications can be intercepted and it is essential that law enforcement agencies and the courts can be certain about the admissibility of evidence collected via interception."

"At present the only thing certain about the law, in relation to stored communications, is that it is not clear. And the proposed changes will not make it clear. The Crimes Act must be amended so it cannot be perceived as over-riding the protections of the Interception Act and amendments must be made to the Bill to resolve other problems."

Another disagreement concerns proposed changes which would make it illegal for employers' designated staff to read email tagged as suspected spam to determine whether or not it is spam.

"We agree with the AFP about spam filtering technology," said Graham. "The technology is helpful but blind reliance on artificial intelligence carries a significant risk that important messages will be trashed. The Attorney-General's Department may not care if they miss receiving messages, but businesses could lose customers."

EFA is also concerned that ISPs who make back up copies of emails for the purpose of disaster recovery could be found in breach of interception laws and raised the issue with the Committee.

"The AFP's comments to the Committee suggest they consider our interpretation of the law in that regard might be correct, but the Attorney-General's Department does not," said Graham. "It is also unclear whether messages that are backed up before delivery to the intended recipient could be accessed by law enforcement agencies without an interception warrant."

"The Bill should be amended to ensure an interception warrant is necessary and provide certainty to ISPs about the practice of making backups and the rules for access to such messages by law enforcement agencies."

EFA said other currently proposed laws may involve problems and issues similar to those found with the interception Bill. The proposals of concern are the Exposure Draft of the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Bill 2004 and the Surveillance Devices Bill 2004.

"The Exposure Draft of new telecommunications offences has been advertised in a way that suggests it's mainly about child pornography, but it covers much more than that," said Graham. "In our view the proposed defences for ISPs are not adequate and, of even more concern, it seems the proposed laws could result in employers being held criminally liable for an employee's illegal use of the Internet access.

"The exposure draft also includes a number of telecommunications offences such as 'wrongful delivery of a communication' with a maximum penalty of 1 year imprisonment," said Graham. "This provision seems to cause problems for both ISPs and employers."

The Surveillance Devices Bill would, among other things, grant the AFP new powers to covertly install data surveillance devices on people's personal computers.

"Presumably such devices could record all outgoing and incoming communications; certainly key stroke logging devices could record outgoing emails," said Graham. "Whether that would be illegal under the Interception Act seems to depend on where the telecommunications system begins and ends. This issue was also raised during the Committee inquiry and the AFP considered it to be uncertain while the Attorney-General's Department said in their opinion it includes personal computers that are connected to the telecommunications system."

"Most of Australia's telecommunications laws were developed before modern telecommunications technologies existed, let alone became mainstream," said Graham. "It's become clear that trying to patch these laws to deal with new technologies is impractical and highly likely to have unintended and undesirable consequences.

"It's time the laws were properly reviewed and overhauled to provide certainty and clarity. Moreover, legislative drafters should start obtaining advice and information from technical experts and members of the industry and businesses who understand how the technology is commonly used, before the laws are drafted."

-- Ends --

Below is:
- Additional information
- Background - URLs of proposed legislation
- Contact details for media

Additional Information:

  1. The disagreement between the AFP and A-G's Department concerns the current operation of the telecommunications interception regime and how it would operate under proposed changes. During the Committee's inquiry, the Australian Federal Police said they believe they are currently allowed to intercept emails temporarily stored on ISPs' equipment without an interception warrant due to the operation of Section 3L of the Crimes Act. Section 3L came into effect with the Cybercrime Act 2001 which was rushed through Parliament in the wake of September 11. However, the Attorney General's Department said in their opinion Section 3L does not over-ride the Telecommunications Interception Act. The Australian Federal Police base their opinion on advice of the Commonwealth Director of Public Prosecutions while the Attorney-General's Department base their opinion on advice of the Solicitor-General.
  2. Regarding spam and virus filtering/blocking, the Attorney-General's Department said they are not concerned about that aspect because they rely totally on the artificial intelligence of spam filtering technology. The Australian Federal Police disagreed, stating they consider it necessary for a human to read suspect messages. Unless the Bill is amended, employers would have to allow their employees' mail boxes to be filled with spam. EFA doubts most employees would be pleased about that.
  3. The Exposure Draft of new telecommunications offences includes a defence available to an ISP in relation to use of a carriage service by another person, for example one of their customers, but in EFA's view that defence is inadequate. Of even more concern however is that given the draft plainly allows for an ISP to be held responsible and liable for use by a customer, it seems that an employer could be held responsible and liable for use by an employee, but there is no defence of any type for an employer.
  4. The 'wrongful delivery of a communication' provision in the Exposure Draft seems to cause problems for both ISPs and employers. For example, if an employer asks an ISP who provides them with email addresses for their employees to redirect email addressed to an ex-employee to a replacement employee's address, apparently that would be a 'wrongful delivery' offence.

    EFA is of the view that the Exposure Draft needs much more publicity and ISPs and businesses should have a close look at it and raise any concerns they have. The Attorney-Generals' Department has called for public comments on the exposure draft to be submitted by 13 April.

Background:

  1. Senate Legal and Constitutional Legislation Committee Inquiry into the Telecommunications (Interception) Amendment Bill 2004
  2. Telecommunications (Interception) Amendment Bill 2004
  3. Exposure Draft: Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Bill 2004
    http://www.law.gov.au/www/agdHome.nsf/Alldocs/RWP28614E7E165BD55DCA256E55000B56F6?OpenDocument
  4. Surveillance Devices Bill 2004

About EFA:

Electronic Frontiers Australia Inc. ("EFA") is a non-profit national organisation representing Internet users concerned with on-line rights and freedoms. EFA was established in 1994, is independent of government and commerce, and is funded by membership subscriptions and donations from individuals and organisations with an altruistic interest in promoting online civil liberties.

Media Contacts:

Ms Irene Graham
EFA Executive Director
Phone: 0412 997 163
Email: ed at efa.org.au       		Mr Greg Taylor
EFA Chair
Phone: 0419 789 904
Email: chair at efa.org.au

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Electronic Frontiers Australia Inc -- http://www.efa.org.au/
URL of this release: http://www.efa.org.au/Publish/PR040331.html
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