Increasingly, we are living our lives online – our banking is virtual, our personal photographs are stored in the cloud, the majority of our communication occurs via a digital medium, be it email, text or social media platforms.
Almost everything about the average Australian individual is logged and recorded somewhere, and could easily be accessed and reviewed by the Australian Government if encryption was made illegal or obsolete.
At present there is an important legal argument in Australia as to whether encryption is necessary to protect the privacy of average Australians, or whether it is a cloaking mechanism which permits terrorists or other criminals to plot, plan and execute crimes with impunity.
We examine both competing points of view.
Privacy is paramount
A submission by the Australian Privacy Foundation (APF) to the Office of the United Nations High Commissioner for Human Rights outlines the importance of data transmitted online being able to remain confidential and private. In so doing, the submission highlights the lack of a constitutionally enshrined right to freedom of expression and privacy in Australia, noting that other developed countries do have a more comprehensive national framework in relation to these important human rights.
The basis of the submission is centred around the notion that the ability to post freely online without fear of reprisal, censure or arrest is the foundation of true privacy and freedom of expression.
These concerns were reiterated in an open letter from a number of concerned citizens, privacy organisations, civil libertarian bodies and corporate entities under the banner of securetheinternet.org. The letter, dated June 30, 2017, was addressed to the international ministers responsible for the Five Eyes program – the cooperative intelligence venture between Australia, the UK, the US, Canada and New Zealand.
It stated that encryption does far more good than harm, and denounced various proposals by the Five Eyes community to circumvent it, including:
- A requirement for commercially available encryption software to include deliberate weaknesses or backdoors so that governments could easily access the information.
- Forcing service providers to design encryption tools that would easily be intercepted by governments.
- Requiring companies to maintain the ability to decrypt user data.
It was further noted that taking steps along those lines would only nullify the rights of individual citizens, while those intending to commit crimes would simply rely on encryption tools manufactured in other countries without strict regulations, which are available for purchase on the black market.
Crime prevention at all costs
The other side of the legal debate was most recently addressed in a press conference on July 14, 2017 by Prime Minister Malcolm Turnbull, the Attorney-General George Brandis and the Acting Commissioner of the Australian Federal Police Michael Phelan.
At the conference, key concerns relating to encryption were stated to be terrorism plotting, drug trafficking and crimes involving the exploitation of children. Mr Turnbull announced proposed legislation which would require the cooperation of device manufacturers and service providers to provide information to law enforcement in response to issued warrants.
This includes requesting companies like Facebook and Apple to retain a copy of the encryption keys handed to customers at the time of product purchase and being prepared to hand them over to law enforcement when pressed.
It was reiterated that the current issue facing law enforcement was not in obtaining the information – Australian legislation already permits information to be provided when relevant to investigations – but in being able to interpret and translate the encrypted information.
Apart from the potential incursion into individual liberties, the most significant issue with this proposed legislation is that international companies cannot be forced to abide by Australian legislation, with even Mr Turnbull admitting that he was essentially asking tech giants like Facebook and Whatsapp to comply with a “moral obligation” to provide information to Australian law enforcement.
Data encryption and the right to privacy versus the ability for law enforcement to be able to access information it deems necessary for the safety and security of citizens is likely to continue to be an important legal issue for the foreseeable future.
Nyman Gibson Miralis provides expert advice and representation in complex cases involving encryption law.
Contact us if you require assistance.