Dated April 2002
This document is at http://www.privacy.org.au/Papers/SubmnCParlt0204.html
The Australian Privacy Charter Council welcomes the opportunity to comment on this Bill. The Committee will be familiar with the Council and its role from past Inquiries. Background can be found at www.apcc.org.au
The Telecommunications (Interception) Amendment Bill 2002 includes a highly alarming provision that will drastically reduce the privacy protection afforded to communications in Australia.
The proposed amendment to s.6 seeks to clarify the law relating to interception of telecommunications as it applies to what are described in the Explanatory Memorandum as `delayed access message services'. The interception regime, with its strict safeguards involving high thresholds (investigation of major offences) warrants and relatively transparent reporting, may NOT apply to 'stored & forwarded' communications such as E-mails, SMS, pager messages and voice messagebanks, at least after they have been downloaded via a telecommunications line.
The amendments introduce a concept of `Stored communications' resulting from a delayed access service. This concept makes a distinction between access by the recipient involving telecommunications and access by other means (such as switching on a device). It is not at all clear how this distinction would relate in practice to the operation of various `delayed access' services, although it would seem that E-mails would not become stored communications until they had passed from an ISP's server to a user's equipment. This must be clarified in relation to all types of service as it is crucial to the extent and implications of the proposed change.
This is because `Stored communications' resulting from a delayed access service would be accessible to law enforcement agencies through the much weaker provisions of the Telecommunications Act. Assurances by the government that this access would still be subject to equivalent safeguards such as search warrants are misleading - the vast majority of `stored communications' that law enforcement agencies would be interested in would be only be `protected information to the extent provided by Part 13 of the Telecommunications Act - access would at best require a certificate from a senior police officer, and in most cases simply a request to a telecommunications business from police (see section 282). The content of such `stored communications', which could be every bit as sensitive as a voice phone call, would have no more protection than traffic data about the parties to, timing of and duration of a call. (We have previously drawn attention to the erosion of privacy involved in such easy access to telecommunications traffic data and we continue to argue that interception safeguards should apply to at least some categories of this data.)
The Telecommunications Act is itself ambiguous about the treatment of emails and other delayed access messages - certificates under s.282 (3)(4) & (5) cannot be used in relation to `contents or substance of communications' but it is never been certain whether this prevents their use for some stored messages, or whether it would be unlawful for telecom businesses to give access to stored messages under s.282(1) or (2).
More and more of the routine communications of Australians are through the convenient `store & forward' technologies. We are all entitled to the same protection and safeguards as apply to 'old fashioned' voice communications.
There is no rational distinction between 'real time' and 'store & forward' communications that would justify the law enforcement agencies being allowed to reap a technological dividend, at the expense of the privacy of all Australians.
We have not been able to conduct a comprehensive review of overseas jurisdictions, but we are aware that in at least some of these, (eg: Germany), E-mails are protected by strong interception safeguards until they have been downloaded and read by the recipient. In our view, this should be the critical threshold - once a recipient has read or listened to a message, then continued storage is at their discretion and the stored record is correctly considered in the same way as other documents. But up to the point that the recipient has been able to make a decision about storage, the message must be considered as protected content.
We urge the Committee to request from the government:
so that the community may judge the true extent of the proposed departure from protection norms.
In the limited time available, we have not been able to do more than look superficially at the other provisions of this Bill. On the face of it, they allow for interception warrants for further categories of serious crime, and by new or re-named law enforcement agencies in the same class as those already authorised. While we do not necessarily oppose these changes, we urge the Committee to examine very closely the justification provided. Communications interception is one of the most serious violations of personal privacy and must continue to be strictly rationed to situations where other public interests strongly outweigh privacy, and where alternative less intrusive methods have been exhausted.
We thank the Committee for the opportunity to put this submission and stand ready to explain or amplify our concerns at the Committee's request.
Nigel Waters
Convenor
Australian Privacy Charter Council
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