Privacy R.I.P.

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Are police watching your Facebook, looking at your private health records, banking details, and email addresses? Are they modifying or copying your data and posts without your knowledge, or forcing you to hack others on their behalf? If they didn’t have the power to before, they do now.

Under new legislation, agencies like the AFP and Australian Criminal Intelligence Commission (ACIC) can now monitor your online activity and intercept your data, all without a warrant and even without your knowledge. In August 2021, the Morrison Government pushed through the “Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020” which has given Australian law enforcement agencies comprehensive new surveillance powers over all Australians. In passing the Bill, federal Parliament rejected recommendations from the bipartisan Parliamentary Joint Committee on Intelligence and Security urging stronger safeguards to properly protect the privacy of all Australians.

The Bill invests law enforcement with three new expansive powers; Data Disruption Warrants, Network Activity Warrants and Account Takeover Warrants. They won’t even have to know the identity of the individuals they are investigating. That’s right, “data disruption warrants” will be issued on devices even where the individual’s identity remains unknown, so long as the device is “reasonably believed” to potentially assist in the course of an investigation.

What does this all mean? Well, authorities can now ‘disrupt’ your online data by modifying, copying or deleting it; collect intelligence from multiple devices and networks; and perhaps most alarming of all, they will be able to take over your online accounts and use your account for the purposes of an investigation – all without you even being aware it is happening.

Service providers such as Telstra, Optus, and Vodafone can now be lawfully required to ‘hand over’ any communications without ever notifying you.

So called “assistance orders”, will require individuals to assist law enforcement to “hack” other people’s devices, or face up to ten years imprisonment for refusing.

Alarmingly, the new legislation bypasses any need for a warrant, creating essentially a ‘warrantless surveillance’ process. The bill empowers any AFP or ACIC officer to apply for an emergency authorisation to intercept data – without a warrant – if the officer reasonably suspects there is an imminent risk of serious violence, which could be prevented by intercepting said data.

In a review conducted by former head of ASIO, Mr Dennis Richardson, the legislation is described as “enabling the AFP and ACIC to be judge, jury, and executioner.” Mr Richardson’s review considered the provisions to be “so dangerously overbroad they would enable widespread surveillance across social media and messaging platforms”. Certainly, it is easy to imagine that, if someone was suspected of using Snapchat for criminal purposes, this legislation would allow the AFP and ACIC access to all of Snapchat.

Former Home Affairs Minister Peter Dutton, claims police and law enforcement would only use the new laws against serious offences like drug trafficking, terrorism, child exploitation and all things Dark Web, insisting the new powers would apply “to those people and those people only.”

However, the legislation potentially would open floodgates that may well propel Australia into a “warrantless law enforcement” regime.

Only time will tell where it all may lead us. However, the Human Rights Law Centre perhaps makes a good point in cautioning that “by enacting wide-ranging surveillance and secrecy laws in the absence of federal human rights laws, successive governments have put the cart before the horse.”

Nick Collett

Queensland Lawyer

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