Proposed law would ease way for reciprocal police surveillance with Five Eyes partners, allowing Australian agencies to request data held abroad or seek interception such as wiretaps

This article is more than 6 months old

This article is more than 6 months old

Peter Dutton has released a bill to increase cooperation between Australian law enforcement agencies and international partners by creating a system to authorise interception of phone calls or access of electronic communications.

Under the new framework, the attorney general’s department will become a clearing house for international requests for orders to produce communications information, with Australian agencies to gain reciprocal rights to request data held abroad or even seek interception such as wiretaps.

The international production orders bill, introduced to parliament on Thursday, is designed to allow Australia to sign a deal under the US’s Clarifying Lawful Overseas Use of Data Act, joining the UK in gaining reciprocal rights to access data for law enforcement.

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The bill creates three types of international production orders for:

Interception, to authorise wiretaps of video and voice calls

Stored communications, to seek disclosure of a particular individual’s messages using a particular email or messaging application; and

Telecommunications data, to seek metadata including the time, date and duration of the communication and information about the parties, such as customer name, billing information, contact details, and account information.

An interception order must be approved by an eligible judge or Administrative Appeals Tribunal member who must have regard to whether interception is the investigative method least likely to interfere with any person’s privacy.

Interception orders can only be issued to agencies investigating crimes with a maximum penalty of at least seven years imprisonment.

The bill also allows interception of the communications of a person who is not the target of an investigation of a relevant offence – the “B-Party” – if authorities have “reasonable grounds” that the target of the investigation uses that person’s communications services.

Stored communications and telecommunications data orders can be issued to investigate crimes with a maximum penalty of at least three years imprisonment. These forms of orders can be authorised by the issuing authority itself or a nominated AAT security division member.

The attorney general’s department will act as an intermediary, receiving orders and requests from overseas and communicating with Australian law enforcement, national security agencies and communications providers.

The explanatory memorandum states that Australian law enforcement agencies need access to electronic information and communications data from foreign providers because criminals “typically access communications services that are supplied or operated by entities outside Australia”.

Mutual legal assistance is currently “lengthy” and cannot keep pace with “the fast-moving requirements of the investigation and prosecution of serious crime”, it said.

The Digital Rights Watch chairperson, Lizzie O’Shea, said the bill “largely solidifies in legislation the existing practical cooperation that occurs informally with Australia’s Five Eyes partners”.

“Our concern is every time legislation permits increased surveillance capabilities, that becomes the lowest common denominator and our allies can access that same information using powers in Australia to do so,” O’Shea told Guardian Australia.

O’Shea also warned of the new regime’s interaction with Australia’s anti-encryption laws, which allow law enforcement agencies to issue technical assistance notices or capability notices to compel cooperation from technology companies in building weaknesses into products.

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Dutton, the home affairs minister, has been engaged in a war of words with Facebook, after it declared it plans to roll out end-to-end encryption from WhatsApp to its other messaging services, Facebook Messenger and Instagram.

O’Shea suggested the bill could make it more likely law enforcement agencies could share tools to build weaknesses into products, and Australian agencies could use encryption powers on behalf of another state.