The Australian Parliament’s own human rights watchdog committee has identified a raft of concerns with the Assistance and Access Bill 2018, and is ‘seeking additional information’. Apple has strongly criticized Australia’s anti-encryption bill…
The Australian Parliament’s own human rights watchdog committee has identified a raft of concerns with the Assistance and Access Bill 2018, and is ‘seeking additional information’.
Apple has strongly criticized Australia’s anti-encryption bill, calling it “dangerously ambiguous” and “alarming to every Australian.”
Background
The Australian government’s draft law — known as the Access and Assistance Bill — would compel tech companies operating in the country to provide “assistance” to law enforcement and intelligence agencies in accessing electronic data. The government claims that encrypted communications are “increasingly being used by terrorist groups and organized criminals to avoid detection and disruption,” without citing evidence.
But critics say that the bill’s “broad authorities that would undermine cybersecurity and human rights, including the right to privacy” by forcing companies to build backdoors and hand over user data — even when it’s encrypted.
Analysis
The government needs to explain why Australian law enforcement and intelligence agencies need the sweeping new powers proposed in the Assistance and Access Bill 2018, according to the Parliamentary Joint Committee on Human Rights.
The committee has identified multiple occasions where it isn’t clear why the proposed measures are “necessary, as opposed to desirable or convenient”, and where the measures are not “rationally connected to (that is, effective to achieve) the stated objectives of the measures”.
The committee’s 47-page analysis was published in its Report 11 of 2018, which was tabled in Parliament. It discusses how the three proposed methods for the government to request or demand assistance in accessing private information would impact human rights.
These may limit human rights, such as the right to privacy and the right to freedom of expression, so “for each of these rights, the measures must pursue a legitimate objective and be rationally connected and proportionate to achieving that objective”, the committee wrote. While encrypted communications may well pose challenges, according to the committee the government has not established pressing and substantial concern.
Notices and requests could also be issued to protect “the interest of Australia’s foreign relations or Australia’s economic well-being”, grounds which are “broader than those on which the right to freedom of expression can be validly restricted”.
In this context, the committee raised what is often called the “chilling effect” of surveillance, citing article 19(2) of the International Covenant on Civil and Political Rights (ICCPR). The Bill’s definition of “interception agency” is “very broad” and includes state-based anti-corruption agencies.
A pact of five nation states dedicated to a global “collect it all” surveillance mission has issued a memo calling on their governments to demand that tech companies build backdoor access to their users’ encrypted data — or face measures to force companies to comply.
The international pact — the US, UK, Canada, Australia and New Zealand, known as the so-called “Five Eyes” group of nations — quietly issued the memo demanding that providers “create customized solutions, tailored to their individual system architectures that are capable of meeting lawful access requirements.”
This kind of backdoor access would allow each government access to encrypted call and message data on their citizens. If the companies don’t voluntarily allow access, the nations threatened to push through new legislation that would compel their help.
The U.K. passed its Investigatory Powers Act in 2016, and earlier this year the U.S. reauthorized its foreign surveillance laws with few changes, despite efforts to close warrantless domestic spying loopholes discovered in the wake of the Edward Snowden disclosures.
Counterpoint
The committee identified a broader concern. Both the Telecommunications (Interception and Access) Act 1979 and the Surveillance Devices Act were legislated before the Parliamentary Joint Committee on Human Rights was established under the Human Rights (Parliamentary Scrutiny) Act 2011. In other words, the committee has never looked at the existing laws through its human rights lens.
It is therefore difficult to assess whether the warrant or authorisation scheme in the existing Acts would operate as a sufficient safeguard for human rights.
Assessment
Our assessment is that the Australia’s new legislation, which grants sweeping powers to the government, could allow the government to order the makers of smart home speakers to install persistent eavesdropping capabilities into a person`s home, require a provider to monitor the health data of its customers for indication of drug use, or require the development of a toll that can unlock a particular users device regardless of whether such tool could be used to unlock every other users device as well.
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