The Guardian 22 February, 2006
New surveillance powers
reach beyond "people of interest"
In March last year, Tony Blunn, a former head of the Attorney-General’s department, was asked by the government to review interception powers in the wake of privacy concerns and new technology, such as email and SMS. Blunn’s report, tabled in parliament by Attorney-General Philip Ruddock last September, found that Australia needed tighter laws.
Mr Blunn said access to stored communications such as email and SMS messages should continue to be authorised by search warrant, but conditions on warrants should be toughened.
He said while phone tapping was essential to fighting crime and protecting national security, privacy should be given priority.
Mr Ruddock told parliament he would act on his recommendations.
And acted he has — by presenting legislation to extend the scope of eavesdropping to non-suspects and people who have no knowledge of any use to spy agencies or police investigations.
Legislation introduced in the Federal Parliament on February 16 provides for indefinite powers to "enable interception of communications of a person known to communicate with a person of interest".
For the first time ever in Australia it will be legal for police and spy agencies to tap phone calls, emails, voicemails and mobile text messages of people who are not under suspicion. That is, they will be able to monitor the actual communications as they are taking place.
The person whose communications are being monitored need not even be believed to have some knowledge of anything of interest. All they need to have done is had some communication with a "person of interest".
The agency seeking to tap into the communication must first obtain an interception warrant — these are available where the investigations are of serious offences punishable by a maximum period of at least seven years imprisonment. The issuing authority must be satisfied of certain conditions such as there are reasonable grounds for suspecting the person might use the telecommunications service, that the information obtained would be likely to assist, etc. Of course the person concerned would not be informed that their privacy and that of those they communicated with would be transgressed.
With the advent of emails and other high tech communications, data is often stored through a communications carrier. For example, emails are stored by a carrier until they are downloaded onto a person’s computer.
While the Bill specifies a general prohibition on access to stored communications held by a telecommunications carrier, there are provisions for a stored communications warrant to access stored communications. These are along similar lines to the provisions for tapping into the actual communications as they are taking place. The person whose privacy is being breached need not be a suspect.
In the case of stored communications, these powers apply where the offence being investigated is punishable by a maximum period of imprisonment of three years or a fine of at least 180 points. (At present one point amounts to a fine of $110.)
There are already other means for accessing communications at the end of their path by such means as ASIO’s powers to enter computers and police search warrants.
Police will have 45 days and ASIO three months to monitor a person once a warrant has been issued.
Liberal and National Party MPs agreed to the Bill proceeding, but only after some concerns were raised and assurances given from the Attorney General Phillip Ruddock that the privacy of innocent Australians would be protected. As the Bill provides for the surveillance of innocent people, his assurances are nonsense.
The scope of the Bill is mind-boggling. People have communications with all sorts of people — teachers, doctors, trades-people, members of sporting clubs, parents of their children’s friends, organisations and so on.
If any one of those contacts is a "person of interest", then they may have their communications monitored.
In the case of journalists, the implications are extremely serious. All of their electronic communications could monitored — regardless of whether they had anything to do with the "person of interest" they had communications with.
An innocent journalist could then be putting at jeopardy the confidentiality of communications with other people.
Confidentiality is critical to a journalist.
Likewise, medical, legal, accounting and many other professions rely on being able to offer confidentiality to do business.