The head of ASIO, Australia’s resident spy agency, has lashed out against tech companies like Apple and WhatsApp for not playing ball when it comes to handing over your encrypted messages.
ASIO Director-General of Security Mike Burgess made the comments about halfway through a June 9 podcast from the Institute of Public Administration Australia, Work With Purpose, as first spotted by iTNews.
In it, he admitted while WhatsApp was generally a good thing, it presented problems for ASIO when it needed to access encrypted messages.
“Having private communications is actually a good thing … the starting point in our society should be that’s a good thing,” Burgess said.
“The real challenge comes when you have a lawful need — so the police are investigating something or ASIO is investigating something and they’ve got a warrant and they want to get access and those providers actually refuse to actually cooperate with governments.
“That’s a problem for me because as societies, especially democratic societies, we understand, we operate within the rule of law.”
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Burgess continued for three minutes, pointing to Apple as a specific example after it declined to give the FBI access to a terror suspect’s iPhone. In early 2020, the U.S. Department of Justice requested Apple assist it in de-encrypting a shooting suspect’s device too. Apple has said it believes allowing access for law enforcement would make it “easier for the bad guys to break in”.
Burgess argued that regardless of Apple’s arguments overseas, it still had an obligation to abide by local laws and work with local authorities in Australia.
“In our country under the rule of law, if we have a warrant — so we’ve met a legal threshold and the appropriate person has said, ‘Yes, you can have this access’ — we would expect companies to cooperate and actually ensure that there is lawful access,” Burgess said.
While it wasn’t clear the parties Burgess was particularly referring to, he also went on to criticise critics who question ASIO’s attempts at enacting new legislation designed to give them extra powers.
Just recently, ASIO and the Minister for Home Affairs, Peter Dutton, were criticised for trying to pass legislation that would see juveniles suspected of terrorism questioned without access to a lawyer.
“[Critics] would say ‘You’re the deep state, you want to look at everything, you’ve got no oversight and you keep asking for new laws,’” Burgess said in the podcast.
“Well, all that is just simple nonsense. We ask for laws that are proportionate to the threat we’re dealing with.”
The comments come months after Burgess delivered the agency’s Annual Threat Assessment and admitted legislation had allowed it to request or require access to encrypted messaging.
“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,” Burgess said at the time.
“And I’m happy to report that the internet did not break as a result!”
The Assistance and Access Act 2018, which passed nearly two years ago, gives ASIO three ways of requesting assistance from messaging service providers, like WhatsApp.
They’re called the Technical Assistance Request (TAR), Technical Assistance Notice (TAN) and Technical Capability Notice (TCN). The specifics of how they function are deliberately vague — not wanting to tip off those who are trying to avoid them — but essentially, they provide spy agencies the ability to request service providers to hand over data or assist them with accessing it.
Burgess’ comments suggest some service providers are perhaps simply unwilling to meet those requests.
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