Waters, Nigel --- "Telecommunications interception: an update" [1999] PrivLawPRpr 21; (1999) 5(9) Privacy Law & Policy Reporter 177

Telecommunications interception: an update

Nigel Waters

The first six months of 1999 have seen the opening, and possibly closing again, of a rare window of opportunity for a debate on the scale and justification for interception of communications. The last such opportunity was the all too brief debate on amendments to the Telecommunications (Interception) Act in 1997 (see (1997) 4 PLPR 110).

Two official Federal Government reviews have just been completed, with the resulting reports under consideration by the Government. The reports will hopefully be made public for further discussion before any decisions are made. Unfortunately, some aspects of the review have been pre-empted by changes in the interception regime applying to ASIO, currently in the Parliament.[1]

The first review was by the Australian Communications Authority, which looked at the cost effectiveness of the interception obligations on carriers and carriage service providers and the cost sharing arrangements.[2] The second was a broader review of interception policy conducted by the Commonwealth Attorney General’s Department.[3] Submissions to both reviews were invited by the end of February. Unfortunately, the AGs review was not widely publicised, and details were only made available on request, which inevitably limited the number and breadth of inputs. However, the draft report which was sent to interested parties on request did give an excellent account of the background and current issues.

This article summarises the submission made by the Australian Privacy Charter Council to both reviews.

Changes to the telecommunications law in the early 90s required the then limited number of carriers to provide an interception capability for the initially ‘un-interceptable’ GSM mobile telephones. A major investment, assisted by the Commonwealth, was required to develop an interception capability for digital services.

Following industry deregulation there are now more than 500 carriage service providers (CSPs) — mostly internet service providers — with obligations to provide an interception capability and produce associated documentation, including interception capability plans. It must be questioned how realistic these statutory requirements are, and their effect as a barrier to market entry.

The arrangements for cost sharing must also be in doubt, as some small CSPs may never have an interception warrant served on them, and therefore have no way of recovering their costs from agencies.

All of the costs of interception, whoever bears them, should be taken into account in the cost-benefit justification for the interception arrangements. If only the direct costs to law enforcement agencies are considered in this calculation, an artificially favourable benefit-cost ratio will result. Shifting the cost burden onto carriers and service providers also means that an inaccurate ‘price signal’ is sent to agencies requesting intercepts, perhaps encouraging an overuse of intercepts relative to other investigative techniques.

More and more of the communications intercepted by law enforcement agencies are going to be encrypted in such as way as to make them unintelligible. This will happen for legitimate commercial and personal reasons, and there is no realistic prospect of preventing it. The overall value of intercept product must inevitably decline, and this may change the benefit-cost ratio in a direction which makes it uneconomic to continue to insist on expensive interception capability. However undesirable this trend may be from a law enforcement perspective, it may be that sooner or later governments have to accept the inevitable and abandon the futile pursuit of universal interceptability.

In relation to the AGs review, other key issues include:

• The 1997 change whereby AAT members rather than Federal Court judges will be issuing many interception warrants. While the reasons for this change seem justified, it means a potentially disturbing loss of independent scrutiny of warrant applications. ASIO interception warrants are already issued by the Attorney General, with monitoring only by the Inspector General of Intelligence and Security.
• The breadth of the offences for which warrants may be issued, and the test which should apply for approval. There has been a steady broadening of the scope in recent years, and the current ASIO Legislation Amendment Bill initially threatened to relax the test applying to ASIO.
• The adequacy of the accountability and reporting requirements applying to the interception regime. This includes a possible active monitoring role for the Privacy Commissioner to replace the current ‘passive’ role played by the Ombudsman.
• The desirability of applying the warrant regime to call charge records held by carriers and CSPs (which in themselves can reveal a lot about the nature of a communication) and to stored communications such as email and pager messages.
• The value of a requirement for agencies to notify individuals whose communications have been intercepted ‘after the event’ once any prejudice to the investigative purpose is absent.
• The urgent need for reform of the participant monitoring provisions of the Interception Act.

The reports of the reviews will hopefully not pre-empt further discussion of these issues. They go to the heart of the trade-off the community is prepared to make between freedom of communication and privacy on the one hand, and law enforcement and national security interests on the other.

While we scramble for crumbs of information about the extent of lawfully authorised interception, we must also be conscious of the massive surveillance activity that operates outside the framework of Australian law. This is the signals intelligence gathered by the Australian Defence Signals Directorate (DSD) and its senior partners in the UKUSA alliance. Operating under the codename ECHELON, the UKUSA partners allegedly routinely monitor all radio transmissions into and out of Australia, including mobile phone and satellite communications. This highly secret activity has recently been publicised in Australia by the Channel Nine Sunday program (see http://www.sunday.ninemsn.com.au — search archives for ‘Echelon’), following work by New Zealand journalist Nicky Hager and in Europe and the US (see http://www.freecongress.org/ctp/echelon.html). While the Federal Government and its agencies have so far responded with their predictable ‘no comment’ on so called ‘operational’ national security matters, the Australian public should demand a greater level of openness and accountability at least on the scale of ‘intelligence’ surveillance and its relationship to the telecommunications interception laws.

Nigel Waters, Associate Editor.