Government Seeks Power to Intercept Phone Communications

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Big Brother is watching

“The best way to take control over a people and control them severely is to take a little of their freedom at a time, to erode rights by a thousand tiny and almost imperceptible reductions. In this way, the people will not see those rights and freedoms being removed until past the point at which these changes cannot be reversed.” – quoted in The Unfinished Work of Nimrod, Part 3: The Capturing of the Mind.

The above quote mirrors the fable of the ‘boiling frog’, which explains that a frog placed in hot water will immediately jump out, while one placed in slowly heated tepid water will stay put – until it is boiled to death.

Both convey that people are often unable or unwilling to react to sinister threats that arise slowly rather than suddenly – such as the gradual removal by governments of legal safeguards and protections in favour of state control.

In pre-WWII Germany, those encroachments were justified on the basis of a supposed Jewish threat. The western world later passed a suite of laws ostensibly to protect against the threat and spread of Communism. While in recent years, state power is being bolstered at the expense of basic freedoms and protections on the basis that it is necessary to stop attacks by Islamic terrorists.

The theme is always the same: instill fear in the people by creating a common enemy and use that fear to justify the removal of civil liberties; without proper consultation or any meaningful analysis of whether those encroachments are even capable of achieving their stated objective, let alone in the best interests of the populace.

Removal of legal safeguards and protections in Australia

In 2015, Australia became the only developed country to implement mass ‘meta-data retention laws’ – which require service providers to store a whole host of user data for up to two years and surrender that information to Australian police and law enforcement agencies without them even having to obtain a warrant.

The laws were, as usual, justified on the basis of a need to protect against terrorist attacks, but it was revealed just a year later that over 60 Government agencies including the Australian Taxation Office, Department of Human Services, and even local councils had accessed citizens’ meta-data.

Bankstown Council, for example, accessed data to help catch illegal rubbish dumpers and those who allegedly breached council by-laws. And the Queensland Police Service used the scheme to access the data of cadets in an attempt to determine whether they were sleeping with one another, or faking sick days.

To many, dumping rubbish, monitoring the sexual activities of cadets or even evading tax is not enough to justify sacrificing the privacy of the entire Australian population.

Police have admitted using meta-data to hunt down government whistleblowers and investigate doctors who were critical of human rights abuses in detention centres.

But meta-data access is just the tip of the iceberg.

Hundreds of laws have been passed by federal and state governments in recent years, with bi-partisan support, removing what many see as fundamental freedoms and safeguards in favour of authoritarianism.

These include laws which:

The list goes on and on: in fact, NSW Chief Justice Tom Bathurst recently identified hundreds of laws which take away basic safeguards and protections of individuals in NSW.

The Chief Justice found over 300 recent encroachments in three areas alone: legal professional privilege (162 encroachments), right against self-incrimination (183) and the presumption of innocence (52).

The frog’s water is reaching the boiling point, leading many to call for a bill of rights to provide some protection against increasing government control.

Proposed new surveillance laws

Now, the federal government proposes legislation which would empower law enforcement agencies such as ASIO and the Australian Federal Police to force telecommunications and tech companies to unlock the encrypted data of phone users.

The powers would facilitate the control of user accounts, allowing law enforcement to read text messages in real time, as well as access, delete and even modify the data on your mobile telephone.

Tech experts explain that when information is sent from one device to another, it is encrypted as it travels through the airwaves. The devices themselves also normally utilise encryption technology.

Under the government’s proposal, companies will need to provide encryption keys and other information to law enforcement upon request, thereby allowing the agencies intercept communications and remotely access personal devices.

The legislation is expected to embody a three-stage approach to information requests.

The first stage is voluntary, essentially asking for information and/or assistance.

The second is a compulsory request, where companies must assist or face fines of up to $10 million (or $50,000 for individuals).

The last stage is where companies or individuals do not know how to comply, or cannot comply, with requests. In that event, the government can force them to modify their existing systems or develop new ones.

While the government claims (as per usual) that the powers are necessary to fight against terrorism, there are widespread concerns about the potential for misuse – particularly the intrusion into privacy without sufficient justification. Critics point out the lack of judicial oversight, which essentially gives agencies broad discretion to decide who to target.

Law enforcement agencies have indeed taken a proactive approach to monitoring Australians in recent years. Since 2013, they have made 6,977 requests for data from Facebook alone, around 67% of which have been complied with.

The proposed new laws, like many of their predecessors, are expected to be approved with bi-partisan political support.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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