Recently, Digital Rights Watch released their report The State of Digital Rights, which outlines the many ways Australians’ rights are being impacted by the activities of private companies and governments in the online world.
Digital rights are inherent human rights, which need to be protected and upheld. We look at some of the key digital rights issues facing Australians today, and recommendations for policy makers to adopt as set out in the report.
What are some of the key digital rights issues, and how can they be addressed?
Mandatory metadata retention
The Australian Government has introduced a data retention regime that requires telecommunication service providers to retain every customer’s metadata for two years.
Law enforcement and security agencies can access the data:
- without a warrant or any prior independent authorisation (with the exception of journalists’ metadata);
- without a requirement that access is for the purpose of fighting serious crime; and
- without a requirement that a person be informed when their metadata is accessed.
This raises serious concerns regarding the potential for privacy and human rights breaches against the Australian public.
The Australian Government should repeal the metadata retention scheme, or otherwise introduce significant amendments to protect the rights to privacy and freedom of expression of Australians.
Intelligence sharing operations
The Five Eyes intelligence sharing arrangement among the UK, USA, Canada, New Zealand and Australia commits each party to gather signals intelligence in their designated geographic zone, and to share this information within Five Eyes.
The Australian agencies that are directly linked to Five Eyes include the Australian Signals Directorate (ASD), the Defence Intelligence Organisation, Australian Secret Intelligence Service (ASIS) and the Australian Federal Police.
Essentially, Five Eyes has access to all communications and networked devices in the hands of individuals and corporations. Concerns have been expressed as to the extent and ethicality of surveillance power afforded to Five Eyes, and the associated risks.
- Intelligence agencies need to comply with the Freedom Of Information (FOI) Act.
- A new agreement should be negotiated among the Five Eyes governments regulating the control and storage of information by the United States, where the U.S. holds information on nationals of the other countries.
- The Australian Signals Directorate should cease to conduct commercial espionage.
- The powers of the Joint Parliamentary Committee on Intelligence and Security should be expanded.
Encryption can help to protect national security interests, businesses and individuals from crime and other risks. In July 2017, Prime Minister Malcolm Turnbull discussed giving law enforcement the power to intercept and read encrypted messages in order to keep the public safe from terrorism threats.
Attorney General Brandis indicated that this initiative is part of Australia’s participation in the Five Eyes, and confirmed the government’s commitment to intelligence sharing with these partners.
One of the most commonly discussed options in Australia has been to require technology companies to build a ‘backdoor’ to allow the government to access encrypted data. This raises concerns, however, that built-in weaknesses in encryption systems will be discovered and exploited by criminals and foreign enemies, in addition to the inherent privacy and human rights implications.
Weakening encryption will endanger public safety and economic interests. Rather, the focus should be on utilising Mutual Legal Assistance Treaties (MLATs) to obtain cross-border information in law enforcement, urgently introducing reforms in order to make these processes more efficient.
Nyman Gibson Miralis specialise in dealing with complex international criminal law cases involving cybercrime, including defending the human rights and digital rights of our clients. If you require assistance, contact one of our expert criminal defence lawyers