The Telecommunications (Interception) Act prohibits
interception of 'a communication passing over a telecommunications system'
except where this is necessary for the operation or maintenance of such
a system or pursuant to an interception warrant.(1)
Interception warrants can be issued for national security
or law enforcement purposes.
ASIO’s Director-General of Security can apply for an
interception warrant relating to national security or foreign intelligence.(2)
The Attorney-General may issue warrants for the interception of telecommunications
where the subject of the warrant is reasonably suspected of engaging
in activities prejudicial to security.(3) The Attorney-General
can also issue interception warrants for the collection of foreign intelligence.(4)
In certain circumstances, ASIO's Director-General can
issue a warrant for a limited period if waiting for a response from
the Attorney-General would seriously prejudice national security.(5)
Law enforcement warrants can be obtained by Federal
and State police and other government crime investigation bodies.(6)
Applications for such warrants must be made to an 'eligible judge' or
nominated member of the Administrative Appeals Tribunal.(7)
'Telecommunications service warrants' relate to a particular
identified telecommunications service.(8) 'Named person
warrants’ apply to any telecommunication service that is used or likely
to be used by a named individual.(9)
An application for an interception warrant can include
a request that the warrant authorise entry onto specified premises.(10)
Interception warrants can only be issued for law enforcement
purposes for the investigation of 'class 1' and 'class 2' offences.
Class 1 offences include murder, acts of terrorism, kidnapping and narcotics
offences.(11) Class 2 offences include offences punishable
by imprisonment for life or a period of at least 7 years where the offender’s
conduct involves loss of life, serious personal injury, drug trafficking
or serious fraud, bribery or corruption etc.(12)
An application by a law enforcement agency for an interception
warrant must be accompanied by an affidavit containing prescribed information.(13)
Before issuing either a 'class 1' or 'class 2' interception warrant,
the judge or AAT member must consider whether sufficient information
could be obtained by alternative methods. In the case of an interception
warrant relating to a class 2 offence, the judge or AAT member must
also take into account the extent to which the privacy of any person
or persons would be interfered with, as well as the gravity of the conduct
constituting the offence being investigated.(14)
Additional information must be supplied before a warrant
can authorise entry on to premises.(15)
Police and other law enforcement authorities can obtain
search warrants under various Commonwealth and State legislation.(16)
While an interception warrant can only be issued for law enforcement
purposes in relation to serious 'Class 1' and 'Class 2' crimes, a search
warrant can be obtained for a broader range of offences. For example,
under the Commonwealth Crimes Act 1914 a search warrant can be
obtained in relation to any Commonwealth criminal offence.(17)
Instead of applying to a judge or member of the AAT as with interception
warrants, search warrants can be obtained from a magistrate or a justice
of the peace.(18)
While obtaining a search warrant is not automatic,
the process has been designed to obtain physical evidence not gain access
to communications (although it obviously allows access to the full range
of items found on premises, including items such as computers, documents,
letters etc). Consequently there is no specific requirement in the
ordinary search warrant process to consider privacy issues.
Access to private communications, on the other hand,
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.(19)
The Act also contains strict protocols on use and handling of information
collected by means of interception warrants.(20) For example,
section 67 allows use of intercepted information only for 'permitted
purposes'. These 'permitted purposes' are set out in detail in section
5, and vary between the different Commonwealth and State agencies and
bodies. 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.(21)
Parliament might also note that legislation governing
the use of 'listening devices' (i.e. equipment able to 'record or listen
to spoken words') lays down protocols similar to those in the Telecommunications
(Interception) Act. Under the Australian Federal Police Act 1979,
for example, a 'warrant for the use of a listening device' requires
an application to a judge or member of the Administrative Appeals Tribunal,
who is required to consider 'how much the privacy of any person would
be likely to be interfered with by the use by officials of a listening
device'.(22) In addition, 'listening device warrants' can
only be obtained for 'class 1' and 'class 2' offences, which are similar
to the offences in these categories in the Telecommunications (Interception)
Act.
There is a considerable difference between the duration
of ordinary search warrants and interception warrants. Under the Commonwealth
Crimes Act, for example, a search warrant expires no later than a week
after it is issued. In addition, the issuing officer must be satisfied
that there are reasonable grounds for suspecting that relevant material
will be on the premises subject to the warrant within 72 hours of the
warrant being issued.(23) In contrast, interception warrants
issued for national security purposes have a maximum duration of six
months.(24) Interception warrants issued to law enforcement
agencies can remain in force for a period of up to 90 days.(25)
The latest annual
report(26) on the Telecommunications (Interception) Act
states that during 2002-03, 3058 interception warrants were issued to
law enforcement agencies, representing an increase of 22 per cent over
the previous year.(27) Figures are not provided for the
number of interception warrants granted on national security grounds
or for the collection of foreign intelligence.
The number of criminal prosecutions commenced on the
basis of information obtained through telecommunications interception
warrants increased by 59 per cent in 2002‑03, with a 31 per cent
increase in the number of convictions obtained on the basis of lawfully
obtained information.(28) This follows a similar increase
in 2001-02.(29)
Commenting on these figures, the Attorney-General stated
in March 2004 that:
The increase in the number of interception warrants
reflects the increasing use by targets of multiple services, mobile
telephones and pre-paid services…The report shows that the use of
telecommunications interception continues to be an important investigative
tool which is producing positive results for law enforcement agencies.(30)
Democrat Senator Natasha Stott Despoja
expressed concern about the increase in the number of 'renewal warrants'
over the last two years, and observed that the number of warrants was
not the same as the number of interceptions. While $25 million was
spent in connection with the execution of warrants during 2002-03, there
was a 'decrease in the number of arrests per warrant from the previous
year, with only 50 arrests for every 100 warrants issued….More than
1,500 interception warrants did not result in any arrest.'(31)
She commented:
the picture this annual report creates is one of Australian
law enforcement agencies undertaking more interceptions and spending
more money on them but these not necessarily yielding more information
relevant to criminal offences. It should be noted that these figures
are restricted to law enforcement agencies only and do not incorporate
the no doubt extensive investigative activity that is undertaken by
Australia's
intelligence agencies. I think this is a very worrying set of figures
on an issue that is often overlooked. I hope that members of the public
and people in this place will take a look at this report and recognise
just how many Australians are literally being spied upon.(32)
For further background on telecommunications interception,
see Bills Digest
No. 121 of 2001-02(33) and Bills Digest
No. 44 of 2003-04.(34)
On 3 March 2004 the Senate referred the
provisions of the current Bill to the Senate Legal and Constitutional
Legislation Committee, for report by 30 March 2004.
Submissions were called for by 12 March 2004. The Committee's website
notes that it 'is particularly interested in the appropriateness of
the changes to the telecommunications interception regime proposed in
the Bill, and whether previous concerns of the Committee have been addressed.'(35)
In May 2002 the Senate Legal and Constitutional Legislation
Committee reported on the Telecommunications Interception Legislation
Amendment Bill 2002. As with the 2004 Bill, the 2002 Bill proposed
to allow access to 'stored' or 'delayed access' communications without
an interception warrant. However the proposal was removed from the
final version of the 2002 Bill after the Committee's report(36)
recommended that an interception warrant should be required for access
to such communications.
Concerns expressed to the Committee focussed on the
ability to access emails, text messages and similar communications 'stored'
on equipment operated by an internet service provider (ISP) before being
delivered to the intended recipient. In its original form the 2002 Bill
would have allowed access without an interception warrant to such communications
while they were in this temporary 'stored' mode. Instead of an interception
warrant, some other form of lawful authority such as an ordinary search
warrant could be used to gain access. While the Attorney-General's
Department and the Australian Securities and Investment Commission expressed
support for the proposal, other individuals and groups, including both
the Federal and NSW Privacy Commissioners, were opposed. According
to the Federal Privacy Commissioner:
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.(37)
Electronic Frontiers Australia told the Committee that
allowing access to stored communications on an ISP's premises by way
of a search warrant where the intended recipient is unaware this is
being done would create 'a whole secret surveillance society where there
is absolutely no chance of review of any abuse of power':
All of the protections that come with the interception
legislation go out the door in relation to messages in transit. Instead
of…a warrant only able to be issued by the AAT, you are going to have
a situation where police officers can get a search warrant to go into
ISP premises and check what e-mails are being sent to you, before you
have even received them, and so on.(38)
The current Bill and access to stored communications
In his second reading speech introducing the current
Bill, the Attorney-General said that proposed amendments to the Telecommunications
(Interception) Act allowing access to stored communications without
an interception warrant 'differ from those previously introduced, and
address concerns expressed during consideration of the earlier amendments'
by the Committee.(39)
The Explanatory Memorandum for the 2004 Bill explains
that there will be three circumstances in which a stored communication
will be deemed not to be 'passing over' a telecommunications system,
and where interception will therefore require only an ordinary search
warrant or similar rather than an interception warrant:
-
when the communication is received by the intended recipient or
a person with the authority of the intended recipient
-
when it is accessed by an ASIO or law enforcement officer after
it has been received by the intended recipient and without using
an ISP or other remote service, and
-
when it is accessed by an ASIO or law enforcement officer using
equipment the intended recipient could have used.(40)
The Explanatory Memorandum says that an officer could
not use an ordinary search warrant to access stored emails held on an
ISP's server until 'after the communication has been accessed by the
intended recipient'. It notes that 'an officer could therefore obtain
a copy of the message from the ISP, but could not connect to the ISP
to access the account directly'. Similarly, in the case of voicemail,
normally stored by the service provider on its network until the subscriber
dials in to retrieve the message, the Explanatory Memorandum explains
that an ASIO officer or a law enforcement officer could only use an
ordinary search warrant to obtain the message 'after the communication
has been accessed by the intended recipient'.(41)
The Explanatory Memorandum states that because text
messages via mobile telephones do not involve use of an ISP or remote
access, the issue of 'intercepting' such communications before they
have been received on the intended recipient's equipment does not arise.(42)
Electronic Frontiers Australia's initial reaction to
the current Bill was favourable. Noting that an interception warrant
would be required to access messages stored by an ISP or other service
provider and not yet delivered to the intended recipient, the organisation's
executive director, Irene Graham, said that it 'looks like they've done
it properly this time….The interception warrant provides much more protection
for people's privacy than an ordinary search warrant'. Ms
Graham stated, however, that EFA's board was still
examining details of the proposed amendments.(43)
The NSW Council for Civil Liberties was less convinced.
While agreeing that the new provision resolved technical problems about
the receipt of emails, the Council said the 2004 Bill provided broader
access to communications and reduced personal privacy for people 'who
may be innocently caught up in an investigation'. President of the
Council, Cameron Murphy, was concerned
that the amendments in the current Bill would make telecommunications
interception warrants similar to named-person warrants allowing interception
of any communication sent to a particular person:
There's a different standard for that….If you're going
to protect people's privacy, our argument is it should be more specific;
for example to intercept communications only between the subject of
the warrant and other people involved in an investigation.(44)
The Telecommunications (Interception) Act currently
includes general 'acts of terrorism' as a 'class 1' offence in relation
to which law enforcement agencies can seek an interception warrant.(45)
The Bill will add the specific terrorism offences recently included
in the Commonwealth Criminal Code to the definition of 'class
1' offence in the Act.
The amendment will allow law enforcement officers as
well as ASIO officers to apply for interception warrants to investigate
terrorist activities in Australia.
For background on the new terrorism offences, see Bills Digest
126 2001-02, Security Legislation Amendment (Terrorism) Bill 2002
[No. 2].(46)
The Bill also adds various 'cybercrime' offences and
'dealings in firearms and armaments' to the list of 'class 2' offences
for which law enforcement agencies can seek an interception warrant
under the Telecommunications (Interception) Act.
Under section 15 of the Telecommunications (Interception)
Act, the Director-General of ASIO must cause the managing director of
a telecommunications carrier to be informed of the issue of a warrant
allowing interception of communications passing over the carrier's network.
A copy of the warrant must also be provided. The Bill proposes to drop
this requirement in the case of interception warrants issued to ASIO
where interception will not require action by the carrier. A similar
amendment is not proposed in the case of interception warrants issued
to law enforcement agencies. Under section 60 of the Act, law enforcement
agencies will still be required to inform telecommunications carriers
when communications on their networks are intercepted, even where no
action by the carrier is needed.
Item 1 (of Schedule 1) adds specific terrorism
offences now included in the Commonwealth Criminal Code(47)
to the definition of 'class 1 offence' in subsection 5(1) of
the Telecommunications (Interception) Act. Items 3 and 4 add
further offences to the definition of 'class 2' offence in section 5D
of the Act, namely 'dealings in firearms and armaments' (replacing 'armament
dealings') and cybercrime offences under various Commonwealth, State
and Territory laws.
Items 5-9 amend the definition of 'interception'
of a communication in section 6 of the Telecommunications (Interception)
Act to include not only 'listening and recording' but also 'reading
or viewing'. As the Explanatory Memorandum notes, this broader definition
is more appropriate for modern forms of communication such as emails
and images for which the concepts of 'listening' and 'recording' are
not directly applicable. The effect is to extend the protection in
section 7 of the Act against interception without lawful authority
to cover these additional modes of accessing a communication.
Item 10 proposes to add new subsections 6(3)
and 6(4) to the Telecommunications (Interception) Act providing
that listening to, recording, reading or viewing telephone calls to
publicly listed ASIO numbers by a person lawfully engaged in duties
related to handling such communications will not constitute 'interception'
and will not require a warrant.
The Explanatory Memorandum notes that the amendment
'is limited to calls made to ASIO and does not extend to allowing the
recording of calls made from ASIO'.(48)
Item 10 will also add new subsections 6(5)
to 6(7) to the Telecommunications (Interception) Act specifying
three circumstances in which a 'stored communication' (such as email,
text messages and voicemail) will not be 'passing over' a communications
system, allowing it to be accessed without an interception warrant:
Items 13 and 15 amend section 15 of the
Telecommunications (Interception) Act to provide that where interception
does not require action by a telecommunications carrier or its employees,
the Director-General of ASIO does not need to advise the carrier that
a warrant has been issued allowing interception of communications passing
over the carrier's system.
Parliament needs to consider whether access by ASIO
or law enforcement authorities to stored communications (emails, voicemail
and text messages) without the knowledge of the recipient or sender
should be allowed without adhering to protocols for intercepting private
communications of the type laid down in the Telecommunications (Interception)
Act.
Modern forms of electronic communication such as text
messages and emails were not envisaged when the Telecommunications (Interception)
Act was enacted 25 years ago. Yet reliance on such forms of communication
is substantial in 2004 and will plainly increase. Use of interception
warrants is also increasing significantly. In 1992-93, 527 interception
warrants were issued to law enforcement agencies;(51) ten
years later this had increased to 3058.(52)
The Telecommunications (Interception) Act is designed
for the particular issues raised by official access to private communications
passing over telecommunications systems. The 1994 Barrett report(53)
noted that the Act conforms to privacy principles in the Commonwealth
Privacy Act 1988. Indeed, the report noted that the Telecommunications
(Interception) Act 'and the administrative procedures that have been
established under it, afford a higher standard of privacy protection
than is required by the [privacy] principles'.(54)
According to the Government, the amendments in the
Bill relating to stored communications 'are intended to legislatively
clarify the application of the Act to modern means of telecommunication'.(55)
In providing that a communication is not 'passing over' a telecommunications
service when accessed in a particular way, the Bill aims to 'achieve
certainty in the scope and application of the Act'.(56) The
Attorney-General stated that
the amendments achieve an appropriate balance between
protecting communications passing over the telecommunications system
and the need for accessibility in the investigation of serious crime
and security matters.(57)
Clarification of the circumstances in which an interception
warrant is required will benefit the operations of security and law
enforcement agencies. The current Bill restricts access by security
and law enforcement agencies to electronic communications sitting on
a server or some other form of remote service without an interception
warrant. This addresses concerns expressed about the 2002 Bill (although
see comments above re proposed paragraph 6(7)(c)). The Bill
also describes circumstances in which a stored communication is taken
not to be 'passing over' a telecommunications system where access by
these agencies therefore requires some form of lawful authority but
not an interception warrant.
The fundamental issue, however, is what privacy regime
should apply for emails, text messages and voicemail, as well as for
similar forms of electronic communication that may be developed in the
future. Should official access to private communications using new
forms of electronic technology be allowed outside the type of protocols
in the Telecommunications (Interception) Act simply because the communications
have reached a point in their transmission where they are deemed by
the Bill to be no longer 'passing over' a telecommunications system?
For example, should ASIO or law enforcement officers
be able to access a text message or email without the knowledge of the
intended recipient with an ordinary search warrant (thus avoiding the
need to comply with the pre-requisites and procedures in the Telecommunications
(Interception) Act) just because the message has arrived on the recipient's
computer or mobile phone, but before the recipient has necessarily read
or viewed the message or is even aware of its existence?
If an ordinary search warrant is all that is required,
electronic communications will be treated similarly to traditional methods
of communication, eg ordinary mail. Security and law enforcement agencies
could gain access to private electronic communications in relation to
a broad range of possible offences, not merely for investigation of
the more serious 'class 1' and 'class 2' offences as required under
the Telecommunications (Interception) Act. Lesser scrutiny requirements
also apply.
The apparent drafting error in proposed paragraph
6(7)(a) – which on a strict reading would allow access to stored
communications without an interception warrant by whatever means if
this occurs 'at the same time' as access by the intended recipient –
needs to be remedied. The apparent inconsistency between the terms
of proposed paragraph 6(7)(c) – allowing access without an interception
warrant to emails on a server if this is an incidental result of turning
on a computer with 'always on' internet access – and the suggestion
in the Explanatory Memorandum(58) that such access would
not be permitted, should also be addressed.
The proposed amendment to section 15 of the
Telecommunications (Interception) Act removing the requirement for the
Director-General of ASIO to inform a carrier where interception does
not require action by the carrier or its employees raises a further
policy issue for Parliament to consider, namely should telecommunications
carriers be informed in all cases when communications passing over their
networks are intercepted? Parliament might note that while the Bill
proposes to drop the notification requirement in such circumstances
for interceptions by ASIO, a similar amendment is not proposed under
section 60 of the Act for interceptions by law enforcement agencies.
Law enforcement agencies will still be required to inform telecommunications
carriers in all cases when communications on their networks are intercepted.
The rationale for removing this requirement for ASIO but retaining
it for law enforcement agencies is not set out in the Attorney-General's
second reading speech or in the Explanatory Memorandum.
-
Telecommunications (Interception) Act section 7.
-
Sections 9, 9A, and 11A–11C.
-
Sections 9 and 9A.
-
Sections 11A-11C.
-
Section 10.
-
The following agencies can apply for and obtain interception warrants
for the purpose of law enforcement:
-
Telecommunications (Interception) Act sections 6D, 6DA and 39.
-
Sections 9, 11A, 45, 46, 48.
-
Sections 9A, 11B, 45A, 46A.
-
Section 48.
-
Section 5.
-
Section 5D.
-
Section 42.
-
Sections 46 and 46A.
-
Section 48.
-
See eg Crimes Act 1914 (Cth) Part 1AA, Search Warrants
Act 1985 (NSW).
-
Crimes Act 1914 (Cth) Part 1AA. A search warrant can be
issued where the issuing officer has reasonable grounds for suspecting
that there is, or will be within 72 hours, any 'evidential material'
on the premises (subsection 3E(1)). 'Evidential material' is defined
as a thing relevant to a summary or indictable offence (subsection
3C(1)).
-
Or another person employed in a court authorised for this purpose.
Crimes Act sections 3C, 3E.
-
Sections 46 and 46A.
-
Part VII – Dealing with intercepted information
-
Parts VIII and IX.
-
Australian Federal Police Act section 12G.
-
Crimes Act 1914 (Cth) section 3E.
-
Telecommunications (Interception) Act subsections 9B(3) and 11D(2).
-
Section 49(3).
-
http://www.ag.gov.au/www/agdHome.nsf/AllDocs/6EDC9CC0FC414ED6CA256E45000023F7?OpenDocument
-
Telecommunications (Interception) Act 1979 Report for the year
ending 30 June 2003, p. 17.
-
ibid., p. 34.
-
Telecommunications (Interception) Act 1979. Report for
the year ending 30 June 2002, p. 30.
-
Attorney-General, Press Release 9 March 2004, No 26/2004.
-
Senate Hansard, 9 March 2004, p. 20834.
-
ibid.
-
http://www.aph.gov.au/library/pubs/bd/2001-02/02bd121.pdf.
-
http://www.aph.gov.au/library/pubs/bd/2003-04/04bd044.htm.
-
http://www.aph.gov.au/senate/committee/legcon_ctte/tel_intercept04/index.htm.
-
http://www.aph.gov.au/senate/committee/legcon_ctte/terrorism/report/report.pdf.
-
Senate Legal and Constitutional Legislation Committee, Report
into Telecommunications Interception Legislation Amendment Bill
2002 and other Bills, May 2002, p. 64.
-
ibid, pp. 63-4.
-
Hon. Philip Ruddock MP, Second
Reading Speech, House
Hansard 19 February
2004, p. 25230.
-
Explanatory Memorandum, p. 6.
-
ibid, p. 8.
-
ibid, p. 7.
-
'Mixed views on cops' email power', The Australian, 24 February 2004, p. 34.
-
ibid.
-
Subsection 5(1).
-
http://www.aph.gov.au/library/pubs/bd/2001-02/02bd126.htm.
Some amendments were made to the Bill during its passage that are
not reflected in the Digest.
-
Divisions 72, 101, 102 and 103.
-
Explanatory Memorandum p. 5.
-
ibid, p. 7.
-
ibid, p. 8.
-
Review of the long term cost effectiveness of telecommunications
interception, March 1994, p. 60.
-
Telecommunications (Interception) Act 1979 Report for the year
ending 30 June 2003, p. 17.
-
Review of the long term cost effectiveness of telecommunications
interception, March 1994.
-
ibid, p. 56.
-
Explanatory Memorandum p.5.
-
Hon. Philip Ruddock MP, Second
Reading Speech, House
Hansard 19 February
2004, p. 25230.
-
ibid.
-
Explanatory Memorandum, p.8.
This paper has been prepared for general distribution to Senators and
Members of the Australian Parliament. While great care is taken to ensure
that the paper is accurate and balanced, the paper is written using information
publicly available at the time of production. The views expressed are
those of the author and should not be attributed to the Information and
Research Services (IRS). Advice on legislation or legal policy issues
contained in this paper is provided for use in parliamentary debate and
for related parliamentary purposes. This paper is not professional legal
opinion. Readers are reminded that the paper is not an official parliamentary
or Australian government document.
Published by the Parliamentary Library, 2004.
