Bills Digest No. 153 2003-04
Telecommunications
(Interception) Amendment (Stored Communications) Bill
2004
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Telecommunications (Interception)
Amendment (Stored Communications) Bill 2004
Date
Introduced: 27 May
2004
House: House of Representatives
Portfolio: Attorney-General
Commencement:
The day after Royal
Assent
To exclude 'stored
communications' (defined broadly to include electronic messages
located on a computer, internet server or other equipment, and
whether read or unread) from the controls on interception of
communications in the Telecommunications (Interception) Act
1979 for a period of 12 months while a review of the Act is
conducted.
Detailed background on the telecommunications interception
regime in Australia is contained in Bills
Digest No 111 of 2003-04(1) concerning the
Telecommunications (Interception) Amendment Bill 2004, introduced
in February 2004 and enacted on 27 April 2004 (the February Bill
).
The introduction of the current Bill follows the Government's
withdrawal of amendments relating to 'stored' or 'delayed access'
communications (emails, text messages and voicemail) in the
February Bill. That Bill proposed amendments to the
Telecommunications (Interception) Act allowing access without an
'interception warrant' to stored communications in certain
circumstances. In specified situations, interception of such
communications by ASIO or law enforcement agencies could be
conducted using an ordinary search warrant or similar, and the
protocols for intercepting private communications laid down in the
Act would not apply.
The Government withdrew its amendments after a
report(2) by the Senate Legal and Constitutional
Affairs Legislation Committee revealed disagreement between
government agencies over the current operation of the
Telecommunications (Interception) Act in relation to interception
of stored communications.
The major issue was whether the current Act requires law
enforcement agencies to obtain an interception warrant to access
unread emails stored at an intermediate point before they have been
delivered to the intended recipient. The Australian Federal Police
(AFP) cited advice from the Commonwealth Director of Public
Prosecutions that section 3L of the Crimes Act 1914 (as
amended by the Cybercrime Act 2001) allows officers acting
under an ordinary search warrant to access both read and
unread emails found on a computer, including any stored
'remotely', for example on equipment operated by an internet
service provider (ISP). According to the AFP:
the intention of 3L was clearly to allow access to
stored communications held remotely under the auspices and
accountabilities of the search warrant regime.(3)
Contradicting the AFP's advice, the Attorney-General's
Department submitted a legal opinion from the Commonwealth
Solicitor-General which said that the current operation of the
Telecommunications (Interception) Act:
would preclude a law enforcement agency from
accessing an email stored at an intermediate point in transit, such
as an ISP, in circumstances where that communication has not
previously been accessed by the intended recipient, without a
telecommunications interception warrant.(4)
The amendments proposed by the Government in the February Bill
assumed that the current law required an interception warrant to
access stored communications and were intended to introduce
exceptions to this requirement. The AFP noted that if the
amendments were enacted without an exemption for law enforcement
agencies seeking to use an ordinary search warrant under section 3L
of the Crimes Act, there would be 'severe operational
difficulties'.(5)
In its report the Committee said it was 'most concerned' by the
disagreement between the AFP and the Attorney-General's Department
over the current state of the law relating to stored communications
and the proposed amendments in the February Bill. It recommended
that parliamentary consideration of the amendments be deferred
until:
Parliament is informed of agreement between the
Attorney-General's Department and the AFP on the current operation
of the TI regime, and how it will operate under the [proposed
amendments].(6)
In his second reading speech the Attorney-General, Mr Ruddock,
noted that the amendments proposed in the current Bill 'address
concerns expressed by the AFP in relation to operational
difficulties posed by the current interception
regime'.(7)
The current Bill is the third attempt by the Government to
exempt 'stored communications' in whole or in part from the
protections and protocols of the Telecommunications (Interception)
Act.
In the Telecommunications Interception Legislation Amendment
Bill 2002, the Government proposed to allow access to most stored
or delayed access communications without an interception warrant.
After concerns about the effect on privacy of email communications
were raised with the Senate Legal and Constitutional Affairs
Legislation Committee, the proposal was removed from the final
version of the 2002 Bill. According to the Federal Privacy
Commissioner, for example:
There seems to be little justification for
reducing the privacy protection of a communication as intimate as a
voice mail message or SMS, in comparison with a 'live
communication' simply because the transmission of the former is
temporarily delayed.(8)
The amendments to the Telecommunications (Interception) Act
proposed in the February Bill were drafted with criticisms of the
2002 Bill in mind. In his second reading speech for the February
Bill, Mr Ruddock said that it addressed concerns expressed during
consideration of the earlier amendments by the Senate Legal and
Constitutional Affairs Legislation Committee.(9)
For a temporary period of 12 months, the current Bill will
introduce an exclusion from the Telecommunications (Interception)
Act for 'stored communications' which is broader in scope than that
proposed in either the 2002 Bill or the February Bill.
The earlier Bills proposed for the purpose of the prohibition in
subsection 7(1) of the Act against interception of communications
'passing over' a telecommunications system - that in certain
situations emails, text messages, voice mail etc be deemed to be no
longer 'passing over' any such system. In other words, only part of
the category of messages classed as 'stored communications' would
be outside the Telecommunications (Interception) Act. In the
February Bill, for example, an interception warrant would still be
required to access stored emails held on an ISP's server that had
not been read by the intended recipient.
The current Bill instead proposes that the prohibition in
subsection 7(1) of the Telecommunications (Interception) Act not
apply to 'stored communications' generally, with limited
exceptions. The explanatory memorandum notes, for example, that an
'interception warrant will not be required to intercept stored
e-mail',(10) which would include emails stored on an
ISP's server, whether received by the intended recipient or
not.
Mr Ruddock explained in the second reading speech that the
measures in the Bill 'represent immediate and practical steps to
address the operational issues faced by our law enforcement and
regulatory agencies'.(11) There was also a need,
however, for a 'more comprehensive review of access to stored
communications and the contemporary relevance of Australia's
interception regime'. Mr Ruddock observed that:
When the act was drafted almost 25 years ago, the
Australian telecommunications systems consisted largely of land
based services carrying live telephone conversations. The act was
therefore built around a core concept of communications passing
over a telecommunications system. While this concept is
technologically neutral, its application has proven more difficult
to modern communications services such as voice mail, email and SMS
messaging.(12)
Mr Ruddock announced that he had therefore asked the
Attorney-General's Department to conduct a 'comprehensive review'
of the Telecommunications (Interception) Act, and to report back to
him before the amendments in the Bill cease to have effect 12
months from the date of commencement.
Schedule 1 Item 2 adds new subsection
6E(3) to the Telecommunications (Interception) Act which
provides that a reference in the Act to 'lawfully obtained
information' does not include information obtained by intercepting
a 'stored communication', as long as the interception occurs within
12 months of the commencement of the current Bill. As the
explanatory memorandum notes, the effect is to exclude such
information from the restrictions on use and disclosure of
intercepted material set out in Part VII of the Act.(13)
Section 63 of the Act, for example, contains a general prohibition
against 'lawfully obtained information' (i.e. information obtained
without an interception warrant) being communicated to another
person or being used in evidence in a proceeding.(14)
Under the current Bill, information obtained from interception of
'stored communications' will not be covered by this
prohibition.
Item 3 inserts new paragraph
7(2)(ad) to the Telecommunications (Interception) Act
which provides that the prohibition in subsection 7(1) against
interception of telecommunications without an 'interception
warrant' does not apply to 'stored communications' intercepted in
the 12 month period following commencement of the Bill. The
explanatory memorandum explains that the practical effect of this
item is that:
it will no longer be necessary to obtain a
telecommunications interception warrant, or to rely on some other
exception to the prohibition against interception, in order to
intercept a stored communication.(15)
Lawful access to the communication or the equipment on which it
is stored will still be required. The explanatory memorandum notes
that this could be through the consent of the intended recipient,
under an ordinary search warrant or using the right to lawful
access of a network owner or administrator.(16)
Item 4 defines inserts new subsection
7(3A) in the Telecommunications (Interception) Act which
defines 'stored communication' for the purpose of the Act as 'a
communication that is stored on any equipment or any other thing'
with the exception of a 'voice over Internet protocol'
communication or any other communication stored on a 'highly
transitory' basis. The note to item
4 cites 'momentary buffering (including momentary storage
in a router in order to resolve a path for further transmission)'
as an example of storage of a 'highly transitory' nature.
The Government's intention to review 'the contemporary relevance
of Australia's current interception regime' is a first step towards
resolving the multitude of sometimes competing legal requirements
concerning access to private information. As the digest(17)
for the Surveillance Devices Bill 2004 noted:
If the [Surveillance Devices] Bill is passed it
will add to the number of different warrants that are available
under different statutes covering similar situations. There will
also be new categories of information and associated rules for
using and communicating it (for instance, three categories of
information under the Bill in addition to information covered by
Part VII of the TI Act). There are also different accountability
regimes under the Bill and the TI Act. Further, entirely different
rules apply to search warrants under section 3L of the Crimes
Act.
Parliament may wish to consider whether this
combination of fragmentation and complexity will create
unacceptable difficulties for both law enforcement agencies and
people who are placed under surveillance, whose telecommunications
are intercepted and whose computers may be
accessed.(18)
In this context it would be useful for Parliament to be informed
of, and have the opportunity to comment on, the terms of reference
for the proposed review. A review of the Telecommunications
(Interception) Act and its adequacy in relation to new forms of
communications technology should be a central part of any review,
but as the above quote indicates, may not be sufficient in itself.
Especially given disagreement between key government agencies about
operation of current laws, a broader review appears to be needed to
look at the range of situations in which some form of warrant or
other lawful authority is required for access to private
information, the adequacy of the various legislation covering such
situations, and options for simplifying and clarifying the existing
legal regime.
Any such review should be tabled in Parliament, subject to
appropriate arrangements to safeguard sensitive operational
information. This would allow Parliament to assess both the
adequacy of the review and the adequacy of any legislation proposed
as a response to the review.
It might be queried whether the 12 months allowed by the
Government will be sufficient time for the intended review to be
completed, especially if broader aspects of the legal regime
covering obtaining of private information are included. This
appears to be a relatively short time to conduct a review
(including appropriate consultation), report to the Government and
draft resulting legislation to take the place of the provisions in
the current Bill.
The Senate Legal and Constitutional Affairs Legislation
Committee called for Parliament to be informed of agreement between
the AFP and the Attorney-General's Department about the practical
effect of relevant legislation before any further consideration of
exempting 'stored communications' from the interception regime in
the Telecommunications (Interception) Act. In view of the privacy
(as well as operational) issues that are involved, which have led
to the defeat of previous Government proposals to introduce such an
exemption, it would be useful if the review process included at
least a consultation draft for all interested parties to comment
on. It is not only law enforcement and national security agencies
that have an interest in this issue, but also those with privacy
responsibilities (such as the Federal Privacy Commissioner and
State and Territory counterparts) as well as a wide range of
organisations involved in or dependant on the electronic
communications industry.
The protections in the Telecommunications (Interception) Act
were specifically designed to balance law enforcement and national
security needs with privacy concerns in relation to personal
communications. As the Government has now identified, a key issue
is how the legal regime in the Telecommunications (Interception)
Act (and in other legislation) should be adapted for new
communications technology not envisaged when the Act was enacted 25
years ago.
An issue for Parliament is whether despite the time limit of 12
months on operation of the amendments in the current Bill the
approach proposed by the Government effectively pre-empts any
review. If an exemption for 'stored communications' from the
interception regime in the Telecommunications (Interception) Act is
in place for a year, will it be impractical to institute some other
legal regime, whatever the outcome of any review?
This is a significant issue, not least because the approach in
the current Bill will legalise what appears from the Senate
Committee's report to be a current practice of AFP to use ordinary
search warrants to access 'stored communications' between private
individuals even if those communications have not been read. As
noted above, the Attorney-General's Department considers that
current law does not authorise access in such a way.
In addition, Parliament might note that in the February Bill,
the Government tried to address concerns about the invasion of
privacy raised in relation to the 2002 Bill. But with the current
Bill, the Government is proposing an even broader exclusion albeit
temporary from the protections of the Telecommunications
(Interception) Act for 'stored communications' than that criticised
in the 2002 Bill. Access to such communications before they have
been read by the intended recipient will be allowed under the
ordinary search warrant process, which has been designed to obtain
physical evidence not gain access to personal communications.
Consequently there is no specific requirement in the ordinary
search warrant process to consider privacy issues.
As Bills
Digest No 111 of 2003-04 noted:
Access to private communications raises
significant privacy issues, not least the rights of third parties
whose communications may be accessed or about whom information may
be revealed. Hence the Telecommunications (Interception) Act allows
for such issues to be taken into account before an interception
warrant is obtained, at least in relation to the less serious
'class 2' offences. The Act contains strict protocols on use and
handling of information collected by means of interception warrants
The Act also contains extensive requirements both for keeping
records of telecommunications interceptions and for annual
reporting by State and Commonwealth authorities, including
preparation of a detailed report for the Commonwealth
Parliament.(19)
Parliament will need to consider whether exclusion of 'stored
communications' from the regime in the Telecommunications
(Interception) Act for a 12 month period as proposed in the current
Bill is justified by the operational and practical reasons cited by
the Attorney-General.
-
http://www.aph.gov.au/library/pubs/bd/2003-04/04bd111.pdf.
-
http://www.aph.gov.au/senate/committee/legcon_ctte/tel_intercept04/report/report.pdf.
-
Senate Legal and Constitutional Committee, Provisions of the
Telecommunications (Interception) Amendment Bill 2004,
Canberra 2004, p. 16.
-
ibid.
-
ibid., p. 17.
-
Ibid., p. 27.
-
Philip Ruddock (Attorney-General), 'Second reading speech:
Telecommunications (Interception) Amendment (Stored Communications)
Bill 2004', House of Representatives, Debates, 27 May
2004, p. 29130.
-
Senate Legal and Constitutional Legislation Committee,
Report into Telecommunications Interception Legislation
Amendment Bill 2002 and other Bills, Canberra 2002, p. 64.
-
Ruddock, 'Second reading speech: Telecommunications
(Interception) Amendment Bill 2004, Debates, 19 February
2004, p. 25230.
-
'Explanatory memorandum: Telecommunications (Interception)
Amendment (Stored Communications) Bill 2004', p. 6.
-
Ruddock, Stored Communications Bill, op. cit.
-
ibid.
-
Explanatory memorandum, p. 3.
-
Subsequent sections contain exceptions to this general
prohibition.
-
Explanatory memorandum, p. 3.
-
ibid.
-
http://www.aph.gov.au/library/pubs/bd/2003-04/04bd147.htm.
-
Jennifer Norberry, 'Surveillance Devices Bill 2004', Bills
Digest, no. 147, 2003-04 Parliamentary Library, Canberra,.
-
Peter Prince, 'Telecommunications (Interception) Amendment Bill
2004, Bills Digest no. 111, 2003-04 Parliamentary
Library, Canberra.
Peter Prince
3 June 2004
Bills Digest Service
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