Anti-terror and hate laws

With thanks for contributions from Leanne O’Donnell (@mslods / mslods.com),  Virginia Leighton-Jackson and Griffith University media freedom interns

Recent laws

  • The Australian government has passed the controversial Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2015, which allows for the storage and access of telecommunications metadata by law enforcement and other government agencies.
  • The bill has sparked fierce debate as while this information must remain confidentially stored, the agencies with access to the data are numerous and no warrants are required when the target is a general citizen.
    • Amid concerns in regards to the confidentiality and privacy of journalist sources, the Australian Labor Party has been able to amend the bill to offer limited protections to journalists – namely that warrants will need to be issued if it is reasonably believed that the target is a journalist.
  • The moves to protect journalists and their sources is discussed in Division 4C: Journalist Information Warrants, part of which states:

 

180H (1) An authorised officer of an enforcement agency must not make an authorisation under section 178, 178A, 179 or 180 that would authorise the disclosure of information or documents relating to a particular person if:the authorised officer knows or reasonably believes that particular person to be:

  •  a person who is working in a professional capacity as a journalist; or
  • an employer of such a person; and
  •  a purpose of making the authorisation would be to identify another person whom the authorised officer knows or reasonably believes to be a source; unless a journalist information warrant is in force, in relation to that particular person, under which authorised officers of the agency may make authorisations under that section.

180L (2) The Minister must not issue a journalist information warrant unless the Minister is satisfied that:

the Organisation’s functions would extend to the making of authorisations under Division 3 in relation to the particular person; and

the public interest in issuing the warrant outweighs the public interest in protecting the confidentiality of the identity of the source in connection with whom authorisations would be made under the authority of the warrant, having regard to:

  •  the extent to which the privacy of any person or persons would be likely to be interfered with by the disclosure of information or documents under authorisations that are likely to be made under the authority of the warrant; and
  •  the gravity of the matter in relation to which the warrant is sought; and
  •  the extent to which that information or those documents would be likely to assist in the performance of the Organisation’s functions; and
  •  whether reasonable attempts have been made to obtain the information or documents by other means; and
  •  any submissions made by a Public Interest Advocate under section 180X; and
  •  any other matters the Minister considers relevant.

 

  • Information required to be stored includes: subscriber/ account information, the source and destination of a communication, the date, time and duration of a communication or connection to a service (ie: the internet, and what type of internet was used, ADSL etc), type of communication, and the location of equipment used in connection with the communication.
  • Greens senator Scott Ludlam has labelled the move part of “Tony Abbott’s self-interested fear campaign”, which “entrenches a form of passive surveillance over 23 million Australians”.
  • Independent MP Nick Xenophon has said that he is worried that the law will have “a suffocating effect on journalists”, and that intelligence agencies are gaining much more power over the Australian public.
    • Last year Xenophon was unsuccessful in an attempt to amend a separate security law which imposes lengthy jail terms for journalists who reported information about “special intelligence operations” even where people lives’ were not jeopardised by the media coverage. He wanted exemptions for journalists who reported in good faith about a matter of public interest so long as it would not enable an intelligence official to be identified, a long standing offence in Australia.
  • The laws have a proposed 18 month implementation period, and will be reviewed by the Parliamentary Joint Committee for Intelligence and Security two years after they come into force.

– Virginia Leighton-Jackson

A quick guide for how the new laws will affect the public can be found here by the Australian Financial Review.

Hurst, D. 27.03.2015, “Mandatory metadata retention becomes law as Coalition and Labor combine”, The Guardian: Australian Politics, < http://www.theguardian.com/australia-news/2015/mar/26/mandatory-data-retention-becomes-law-as-coalition-and-labor-combine>

Bennett, J. 27.03.2015, “Criminals may be able to get around Governments new metadata laws: Brandis”, ABC News, < http://www.abc.net.au/news/2015-03-27/metadata-laws-criminals-may-evade-them-george-brandis-says/6351962 >

Kerin, J. 27.03.2015, “What new metadata laws mean for you”, The Australian Financial Review: Weekend, < http://www.afr.com/news/politics/what-new-metadata-laws-mean-for-you-20150327-1m3l9j >

 

  • National Security Legislation Amendment Bill (no. 1)
    • Passed in October 2014, this Bill allows for one warrant to cover a whole computer network rather than an individual computer, gives ASIO criminal and civil immunity from prosecution for actions during “special intelligence operations”, extends spy activities, and increases the penalties for disclosing information about a special intelligence operation.
    • Part one of the government’s three-part overhaul of national security legislation.
  • Counter Terrorism Legislation Amendment (Foreign Fighters) Bill
    • This Bill became law in November 2014, and is aimed to make it easier to prosecute Australians who have engaged in terrorist operations overseas; including the suspension and cancellation of passports and withholding welfare payments, changes to the definitions of ‘terrorist activities’ and ‘declared area’, and the introduction of the offence of ‘advocating terrorism’ which includes social media content.
      • Criminalises ‘hostile activity’ in foreign countries and travel abroad to declared areas; designated by the Minister on the grounds that a terrorist organisation operates there.
      • Control orders can be issued regardless of whether the person has been prosecuted or not.
      • Raises concerns that it leaves journalists and aid workers vulnerable to prosecution on returning to Australia, despite it being a complete defence for the above being the sole reason for travel to a restricted area.
    • Has an attached Explanatory Memorandum which explains the restrictions on overseas travel and controls upon returning to Australia.
    • Part two of the government’s three-part overhaul of national security legislation.

For analysis see:

Pillai, S. 25.09.2014, “Bill targets foreign fighters before departure and on return”, The Conversation, 10.02.2015, <http://theconversation/bill-targets-foreign-fighters-before-departure-and-on-return-30095>

Pillai, S. 07.08.2014, “Foreign fighter passports and prosecutions in government sights”, The Conversation, 10.02.2015, <http://theconversation.com/foreign-fighter-passports-and-prosecutions-in-governments-sights-30197 >

 

  • Telecommunications (Interception and Access) Amendment (Data Retention) Bill is being examined by the Parliamentary Joint Committee on Intelligence and Security (reports 27/2/15); proposing the requirement for telecommunication corporation to retain customers phone and computer metadata for approximately two years, overseen by the Commonwealth Ombudsman, but retains the need for a warrant to access the actual content of the messages or conversations.
    • Part three of the government’s three-part overhaul of national security legislation.

Metadata retention concerns for the media and free speech

  • Australia is considering some drastic changes to the way metadata is stored an accessed in the name of national security and crime prevention. PM Tony Abbott is trying to get the proposals through parliament before March 26 2015 to start the process of data storage. Issues and concerns have been raised by academics, privacy advocates, and civil libertarians, including:
    • There is no formal definition of the term “metadata” in Australia. Currently it falls under “telecommunications data” which is everything except the content or substance of the call – ie: the words said. It can include phone numbers, locations of calls, call duration, IP addresses (the unique code which identifies your computer and where you are in the world), email addresses, and timestamps of emails sent.
    • Frequency of current access is also high, in the general population, with over 580, 000 incidents in the last financial year. But this number may be low as no records are kept for ASIO (Australia’s spy agency) due to them being exempt from having to disclose information.
      • The Australian Federal Police have refused to say how many of these metadata accesses were against journalists/ the media. The Sydney Morning Herald says: “Journalists reporting on the federal government’s asylum-seeker policies have also been repeatedly referred to the police in attempts to uncover confidential sources. This almost always leads to a journalist’s call records being trawled to identify a source.”
      • In the UK authorities have taken a different stance; over three years 608 applications for journalists’ metadata were made, which resulted in the development of guidelines to prevent the media being snooped on without a court order. The EU has also overruled attempts at a previous scheme, however the UK has made data retention mandatory.
    • In Australia there is no judicial oversight, meaning that there is no need for a judge to sign a warrant or a court order before the data is accessed.
    • Some law enforcement agencies can already access metadata if telcos retain it.
    • There is great concern over the number of agencies who can access this data if the proposals are passed. Agencies that can access metadata include federal, state and territory police, Medicare, Bankstown Council in NSW and other councils throughout Australia, Worksafe Victoria, the RSPCA, the Tax Office, Australia Post, domestic spy agency ASIO, financial regulator ASIC (although they have been taken off the current list, they have said they will reapply for access) and many others when conducting criminal and financial investigations.
      • Agencies taken off the list can apply to go back on, and the list can change without notice to the public.
    • There are significant opportunities for abuse of the system – some are already taking place under current legislation, ie: Queensland Police accessed the metadata of cadets in August of 2013 to see if individuals were sleeping together or faking sick days, and Bankstown Council used mobile phone metadata to track people involved in illegal dumping.

Virginia Leighton-Jackson

Source:

Grubb, B. 26.02.2015, “What George Brandis and Malcolm Turnbull can do to fix metadata muddle”, The Sydney Morning Herald: Digital Life, < http://www.smh.com.au/digital-life/digital-life-news/what-george-brandis-and-malcolm-turnbull-can-do-to-fix-metadata-muddle-20150226-13n6ui.html

Commentary

The Independent National Security Legislation Monitor (INSLM) Bret Walker said in his 2014 annual report that laws regarding travel and the issuing of passports were not strong or flexible enough, proposing that a ‘competent authority’ such as ASIO can recommend that a passport be refused or cancelled to better control the flow of people entering IS-controlled areas to fight, and then returning to Australia. They supported the Foreign Fighters Bill, discounting arguments from the media which raised concerns of overzealous use of new powers.

See: Walker, B. 18.06.2014, “Independent National Security Legislation Monitor Annual Report (28 March 2014)”, Independent National Security Legislation Monitor, 10.02.2015, <http://www.dpmc.gov.au/pmc/publication/independent-national-security-legislation-monitor-annual-report-2014 >

Source: Griffiths, E. 4.12.2014, “Explainer: What do the new anti-terrorism laws involve and how will they be rolled out”, ABC News, 10.02.2015, < http://www.abc.net.au/news/2014-09-22/new-anti-terrorism-laws-explained/5761516>

Other news

(by research assistant Virginia Leighton-Jackson)

Dutch court scraps data retention act

A Dutch court has scrapped their version of telecommunications data retention laws which would have required telecommunications operators and OSPs to store customer data for police investigation, a model which was similar to metadata proposals in Australia.

The Court found that it violated fundamental EU privacy rights, but unlike the UK – which decided to push ahead with data retention – it was unwilling to breach international decisions on the matter. The decision brings the country into line with Austria and Germany who have also dropped attempts at introducing data retention schemes in the name of law enforcement.

The court was critical of the overly broad scope of the laws, who would have access to the data, and the lack of prior review of access to data by a court of authoritative independent administrator, all of which have been of concern in Australia.

Essers, L. 11.03.2015, “Dutch court scraps telecommunications data retention law” PC World: Legal, < www.pcworld.com/article/2895356/dutch-court-scraps-telecommunications-data-retention-law.html >

(via mslods.com)

Whistleblower John Kiriakou, only person jailed over CIA torture program, is out of prison. | Boing Boing | http://bit.ly/1xixAhP

In historic ruling, U.K. surveillance secrecy declared unlawful. | The Intercept |  

Government wants metadata laws by March. | The Age | http://bit.ly/16OVpIZ

Examples of how data retention will impact on everyday Australians. | Crikey | http://bit.ly/1zXs4c6

Data retention: too many unknowns, too many unanswered questions. | The Guardian |.  (by me)

Gmail, Facebook, Skype excluded from Australian data retention regime. | ZDNet | http://zd.net/1zGNNSo

White House to mandate deletion of irrelevant private data collected by surveillance agencies. | The Verge |  

One response to “Anti-terror and hate laws

  1. Pingback: Journlaw running updates to The Journalist’s Guide to Media Law | journlaw

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