Monday, 15 October 2018 08:41

Encryption bill open to abuse of power, says Lawyers Alliance Featured

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Greg Barns: "This is a sweeping power because the use of terms such as 'reasonable' and 'proportionate' are of themselves in the eye of the beholder." Greg Barns: "This is a sweeping power because the use of terms such as 'reasonable' and 'proportionate' are of themselves in the eye of the beholder." Supplied

The lack of judicial oversight in the Federal Government's draft encryption bill, of those issuing notices for companies to comply with changes that decrypt data, will ensure that abuse of power is the order of the day, the Australian Lawyers Alliance says.

ALA spokesman Greg Barns told iTWire in response to queries that the Bill specified that the person issuing either a technical assistance notice or a technical capability notice was satisfied that the requirements were "reasonable".

Such notices could be revoked only if those authorised to issue them were satisfied that the requirements were "no longer reasonable, proportionate, practical or technically feasible".

Said Barns: "This is a sweeping power because the use of terms such as 'reasonable' and 'proportionate' are of themselves in the eye of the beholder.

"The proposed revocation process is equally vague and opaque. In short, the powers given to the decision-maker to issue a notice are extraordinary and, of their very nature, open to abuse because of lack of definition."

Under the Bill, companies will be initially requested to co-operate with law enforcement; if they do not, the pressure will be stepped up to force them to help.

First, there will be a “technical assistance request” that allows voluntary help by a company. The staff of the company will be given civil immunity from prosecution.

Next, an interception agency can issue a “technical assistance notice” to make a communications provider offer assistance.

Finally, a “technical capability notice” can be issued by the Attorney-General at the request of an interception agency. This will force a company to help law enforcement, by building functionality.

However it cannot include the decryption of information or removal of electronic protection in any system.

Barns said: "While those impacted can seek a review in the Federal Court or Federal Circuit Court this is after the event. Furthermore, grounds of review of the decision will be limited to errors of law which is a high hurdle.

"The lack of privacy protections for individuals, such as the ability to sue for breach of privacy, means there is no disincentive for abuse of privacy by the security agencies who will use these powers."

Home Affairs Minister Peter Dutton introduced the bill into Parliament on 20 September. The Parliamentary Joint Committee on Intelligence and Security is due to hold its first hearing on the Bill on 19 October.

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Sam Varghese

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Sam Varghese has been writing for iTWire since 2006, a year after the site came into existence. For nearly a decade thereafter, he wrote mostly about free and open source software, based on his own use of this genre of software. Since May 2016, he has been writing across many areas of technology. He has been a journalist for nearly 40 years in India (Indian Express and Deccan Herald), the UAE (Khaleej Times) and Australia (Daily Commercial News (now defunct) and The Age). His personal blog is titled Irregular Expression.

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