A new amendment has been introduced in parliament looking to allow for the easier sharing of communications data between Australia's law enforcement and spy agencies and foreign governments. It comes in response to calls that spy agencies are being left behind without timely access to messaging apps with cloud servers in foreign jurisdictions.
Minister Alan Tudge, responsible for population, cities and urban infrastructure, has introduced amendments that would see foreign law and spy agencies, like those in the United States, attain access to the communications data of Australian users. It would also allow for Australia's nominated spy and law enforcement agencies to request access for message and phone call data from citizens living in overseas jurisdictions.
The bill, the Telecommunications Legislation Amendment (International Production Orders) Bill 2020, seeks to allow the agencies to access data if it's in relation to an investigation of a serious offence.
"Australia is seeking to negotiate agreements with like-minded foreign governments for reciprocal cross-border access to communications data," the amendment's explanatory memorandum reads.
"It is anticipated that these agreements would allow law enforcement and national security agencies in each participating country to issue orders, through a competent authority, for the production of data directed to communications and technology companies in the other country's jurisdiction.
"These agreements would significantly reduce the time it currently takes to acquire communications data that is vital to law enforcement and security efforts."
It explains that due to the rise in cloud computing, data is often held outside of the country in which communications take place, creating a need for easier sharing of citizen data with other governments for the purpose of serious investigations.
"[The] intelligence and evidence that was once stored within Australia and available under a domestic warrant or authorisation is now distributed over different services, providers, locations and jurisdictions, and is often only obtainable through international cooperation," it reads.
"The overwhelming majority of data from these services is held by companies located overseas, including the United States. This places these service providers in a unique position to assist Australian law enforcement and national security efforts."
The bill's explanatory notes explain it would need further discussion regarding how Australian-sourced information provided to foreign agencies might be used. In countries where the death penalty is allowed, like the States, it suggests the information provided would not be able to be used in prosecutions resulting in that outcome.
Interestingly, the bill doesn't outline how the data would be provided. In many cases, users alleged of serious criminal activity would likely be using encrypted services, which means the interception of their conversations is no easy task. Regardless, the international production orders would look for communications data in three ways:
- international production orders relating to interception;
- international production orders relating to stored communications; and
- international production orders relating to telecommunications data.
With the bill only being introduced for a first reading, it'll likely be weeks or months of discussions and further amendments before any votes take place. Hopefully by then, the specifics are made a bit more clear.
It comes just weeks after ASIO's head Mike Burgess admitted the agency had accessed encrypted data within 10 days of the controversial Assistance And Access Act 2018 coming into effect.
"Encrypted communications damage intelligence coverage in nine out of 10 priority counter terrorism cases," Burgess said in a speech on ASIO's Annual Threat Assessment.
"I can confirm that ASIO has used the Assistance and Access Act to protect Australians from serious harm. We needed to take advantage of the new powers within 10 days of the legislation coming into effect – a clear indication of its significance to our mission.
"And I'm happy to report that the internet did not break as a result!"
ASIO's head has admitted the agency's pretty pleased about legislation enacted in 2018 compelling encrypted communication providers, like WhatsApp, to hand over messages if users are under investigation for serious crimes. In a speech detailing the agency's threat assessments, he told the audience he was "happy to report that the internet did not break as a result!"