InnovationAus: Planned AFP data powers are like Minority Report

The federal government’s proposed new hacking powers for the Australian Federal Police are a “catch-all formula for abuse” and resemble something from the Hollywood film Minority Report, the NSW Council for Civil Liberties says.

The federal government late last year quietly introduced legislation to Parliament handing broad new powers to the AFP and Australian Crime and Intelligence Commission (ACIC) to hack into the computers and networks of suspected criminals.

The legislation introduces three new warrants that will allow authorities to “disrupt” the data of suspected criminals, access their devices and networks even if they don’t know their identities and take over their accounts covertly.

The warrants will be issued for any suspected offence carrying jail time of at least three years, covering a wide spread of crimes.

The legislation was quickly referred to the Parliamentary Joint Committee on Intelligence and Security (PJCIS), with submissions to the inquiry closing last week. Some submissions were released publicly by the committee on Monday.

In its submission, the NSW Council for Civil Liberties (NSWCCL) said it was time to draw a line in the sand over increasing laws that erode privacy under the guise of preventing “serious crime”.

The council said the latest legislation is the “next in an accelerating wave, strengthening the powers of the state without any humility about the cumulative erosion of democratic freedoms they entail”.

“This bill builds on this ominous trend and takes it to a new level, providing unprecedented new powers for law enforcement to interfere and ‘disrupt’ communications of citizens without effective restraint,” the NSWCCL submission said.

“The abuse of power this bill enables will happen. Enough is enough.”

The NSWCCL said that the data disruption warrants and account takeover warrants are “crime prevention” tools that resemble something from the science-fiction movie Minority Report.

The powers will apply to a wide range of potential crimes – any carrying at least three years of jail time – not just those referenced by the government in announcing the laws, the submission said.

“This is an extraordinary catch-all encompassing fauna importation, fraud and importantly, such vaguely worded offences as ‘communication and other dealings with inherently harmful information by current and former Commonwealth officers’,” the NSWCCL said.

“These secrecy provisions have already been used to intimidate whistleblowers in several high-profile cases over the last few years. They are framed in a way that prevents vital information regarding government wrongdoing from ever coming to the attention of the public.”

The NSWCLL said that the data disruption warrants, and account takeover warrants, are “crime prevention” tools that resemble something from the science-fiction movie Minority Report.

“We cannot accept a new species of warrant that is based on the notion that the role of law enforcement is to stop possible future offences from being committed where the breadth of their application is so wide,” the NSWCCL said.

“The elastic notion of ‘suspicion’ as the trigger for these laws will permit a generalised, permanent state of surveillance because there is never likely to be a time when there will not be a suspicion of these activities occurring online somewhere.”

In a separate submission, a coalition of digital and civil rights groups including Liberty Victoria, Electronic Frontiers Australia, the Australian Privacy Foundation and the QLD Council of Civil Liberties, said the powers in the legislation amount to “state-authorised hacking”.

“Australians do not have sufficient safeguards of their fundamental rights to protect them from abuse of power by authorities,” the groups said.

The groups said that the new warrants should only apply to national security concerns.

The Commonwealth Ombudsman also made a submission to the PJCIS, calling for privacy to be included as a key consideration when determining whether a warrant should be issued.

“Requiring issuers to consider privacy or less intrusive means of obtaining information or disrupting activity ensures that they have turned their mind specifically to the balance between the right to privacy and the safety of the Australian community when deciding whether to authorise the use of particular power,” the Ombudsman said.

The release of the handful of submissions comes after a group of senators also raised significant concerns about the identify and disrupt bill, including that a “wide scope of innocent parties” could be caught up in the broad and coercive scheme.

The Standing Committee for the Scrutiny of Bills questioned a lack of focus on privacy, the lack of judicial oversight, the potential for innocent people to be impacted and the ability for the powers to be used without a warrant in an emergency.

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