Australia’s law enforcement and intelligence agencies are resisting calls to improve safeguards for intelligence-gathering and actively seeking more surveillance powers, including the ability to force users to decrypt information.



Mandatory data retention, increased powers to gather intelligence from email or social media users, and compelling users to decrypt encrypted files are among an array of proposals from government agencies in submissions to a Senate inquiry into the operation of the Telecommunications (Interception and Access) Act.



The inquiry was sparked by calls from Greens senator Scott Ludlam to investigate the safeguards protecting personal data. They stemmed in part from the revelations from documents obtained by the former national security adviser whistleblower Edward Snowden that Australia offered to share metadata from citizens with overseas surveillance partners. But intelligence agencies are resisting a series of potential changes to the act, and taking the opportunity to argue for greater powers.



A key concern raised about the act concerns the ease with which federal and state government agencies can access “telecommunications data” without a warrant. This includes details such as who a person was calling, the duration of the call and the IP address and location, but not the contents of the communications.



In the 2012-13 reporting year there were more than 300,000 applications for access to this information, from bodies ranging from police to local councils, and even the RSPCA.



But in submissions to the inquiry, Australia’s domestic intelligence gathering agency, Asio, and other law enforcement agencies have strongly resisted calls for more oversight of this data collection.



“Given the lesser level of intrusion, access to this data has never been subject to warrant, nor should it be. But it is nevertheless regulated by internal processes and subject to external review to ensure it is used only when necessary to carry out Asio’s functions,” the submission said. Western Australian police also argued that the thresholds for access to a range of different types of data under the act should not be reviewed.



Despite initially playing down the significance of the use of telecommunications data, the Asio submission then says that such data “provides essential details of activities of security concern”, and provides detailed examples of its value in intelligence operations.



The Asio submission is also at odds with calls from the inspector-general of intelligence services and the privacy commissioner, Timothy Pilgrim, to increase restrictions and safeguards on access to telecommunications material by government agencies. A key part of Pilgrim’s submission is a call to the number of agencies that can access telecommunications data.



The Corruption and Crime Commission broke ranks with other investigative bodies to argue that the current oversight regime “can be improved” by providing “stronger accountabilities and more practical methods” of protection. It also supported a “stronger threshold” for access to telecommunications data.



In their submissions, the attorney-general’s department and the Northern Territory police supported creating an offence if a service provider failed to help decrypt communication.



Service providers routinely encrypt users’ data with varying levels of sophistication, but the attorney-general’s department argues that they should be compelled to provide the information.



The department also appears to be suggesting that other people could be compelled to decrypt protected information by allowing agencies to apply to authorities for what is described as “intelligibility assistance notices”.



“Under this approach, the person receiving a notice would be required to provide ‘information or assistance’ to place information obtained under the warrant into an intelligible form,” the submission said.



“The person would not be required to hand over copies of the communication in an intelligible form, and a notice would not compel a person to do something which they are not reasonably capable of doing. Failure to comply with a notice would constitute a criminal offence, consistent with the Crimes Act.”



Asio, Victorian police, Northern Territory police and the federal police argued for a mandatory data retention scheme for telecommunications information. While telecommunications providers already retain some data on their users in Australia, the submissions call for a uniform scheme of retention that would be consistent across all providers.



But the Australian Mobile Telecommunications Association, the peak telecommunications industry body, cautioned against the scope of such a scheme.



“The associations also note that a data retention scheme will involve an increased risk to the privacy of Australians and provide an incentive to hackers and criminals. Data retention is at odds with the prevailing policy to maximise and protect privacy and minimise the data held by organisations,” the submission said.



“Industry believes it is generally preferable for consumers that telecommunications service providers retain the least amount of data necessary to provision, maintain and bill for services.”



The Australian Law Reform Commission argued for a “public interest monitor” to monitor some aspects of intelligence gathering, but Asio said it “has reservations about this, if the effect would be simply to insert yet another approval step into the authorisation of a TI warrant”.



Among the other submissions arguing for greater powers is that of the Australian Racing Board, which argues that it should be defined as an “enforcement agency”, placing it in the same category as state and territory police agencies. This would allow the organisation to gain greater access to telecommunications information and apply for different types of telecommunications warrants.

