Wednesday, 10 June 2020 11:54

ASIO chief says he only seeks new laws that are 'proportionate' Featured

ASIO chief Mike Burgess: "Our heritage comes from catching spies and to catch spies you have to trust almost no one, and you have to keep it secret because it's a really hard game." ASIO chief Mike Burgess: "Our heritage comes from catching spies and to catch spies you have to trust almost no one, and you have to keep it secret because it's a really hard game." Courtesy YouTube

Privacy is paramount but not total, because there is a balance between privacy and security, ASIO chief Mike Burgess claims, adding that "under the rule of law when appropriate warrants are in place, law enforcement or ASIO should be able to get access to something".

He was speaking on a podcast at the Institute of Public Administration Australia on Tuesday.

His words were part of an argument that has been mounted ad infinitum over the past several years as intelligence agencies have sought to mount a move to justify the breaking of encryption.

Burgess referred to the 2016 case where the FBI demanded that Apple create a new version of its iOS operating system so that the agency could guess the passcode on an iPhone 5 that was owned by a terrorist. Apple refused and finally the FBI paid a commercial firm to get the data.

"Apple's view is that privacy is paramount and they want to design a phone that actually no one can access and because if they give some country access, they have to give it to all countries," he said.

"At one level, I accept that bit in our country under the rule of law, if we have a warrant, so we've met a legal threshold and the appropriate person has said, 'Yes, you can have this access', we would expect companies to cooperate and actually ensure that there is lawful access."

In a more recent case, the FBI asked Apple for help in unlocking an iPhone used by a man who shot dead three people in Florida. In this case, too, the FBI managed to gain access on its own.

The US has now introduced a new law into Congress, to try and ban encryption on the sly. Called the EARN IT Act it works to neutralise section 230 of the Communications Decency Act which allows online platforms to escape liability for things their users say and do; for example, you can sue the person who defamed you on a platform like Twitter, but not the platform itself. An amendment to this section in 2018 has made platforms liable for publishing information “designed to facilitate sex trafficking”.

The new bill makes it necessary for platforms to earn the immunity that Section 230 has afforded so far. And one of the conditions for earning that immunity could well be the ditching of end-to-end encryption.

Burgess claimed that the ASIO only asked for new laws that were "proportionate to the threat we're dealing with". Additionally, the organisation was subject to the oversight of the Inspector-General of Intelligence and Security who could "red card me and if I don't co-operate with the Inspector-General, I'm going to jail and that's the way it should be".

He said with appropriate oversight and appropriate laws, "I don't support private sector companies who want to fight governments to say, 'No, we can't give you', or, 'We can't co-operate with you'.

"Because the other angle that we come at this from is actually when a terrorist event occurs and then someone puts that footage online, or is broadcasting that online and the companies that are facilitating the live streaming of the death of people actually find it really difficult to co-operate on actually the blocking that material or having it removed as quickly as possible.

"Again, in our society, I find that really hard that private sector companies do not want to co-operate with governments on dealing with such abhorrent behaviour."

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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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