Bills Digest No. 153 2003-04
Telecommunications (Interception) Amendment (Stored
Communications) Bill 2004
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Telecommunications
(Interception) Amendment (Stored Communications) Bill 2004
Date Introduced: 27 May 2004
House: House
of Representatives
Portfolio: Attorney-General
Commencement: The day after Royal Assent
To exclude 'stored communications' (defined broadly
to include electronic messages located on a computer, internet server
or other equipment, and whether read or unread) from the controls on interception
of communications in the Telecommunications (Interception) Act 1979
for a period of 12 months while a review of the Act is conducted.
Detailed background on the telecommunications interception regime in
Australia is contained in Bills Digest
No 111 of 2003-04(1) concerning the Telecommunications
(Interception) Amendment Bill 2004, introduced in February 2004 and enacted
on 27 April 2004 (the ‘February Bill’).
The introduction of the current Bill follows the Government's withdrawal
of amendments relating to 'stored' or 'delayed access' communications
(emails, text messages and voicemail) in the February Bill. That Bill
proposed amendments to the Telecommunications (Interception) Act allowing
access without an 'interception warrant' to stored communications in certain
circumstances. In specified situations, interception of such communications
by ASIO or law enforcement agencies could be conducted using an ordinary
search warrant or similar, and the protocols for intercepting private
communications laid down in the Act would not apply.
The Government withdrew its amendments after a report(2)
by the Senate Legal and Constitutional Affairs Legislation Committee revealed
disagreement between government agencies over the current operation of
the Telecommunications (Interception) Act in relation to interception
of stored communications.
The major issue was whether the current Act requires law enforcement
agencies to obtain an interception warrant to access unread emails stored
at an intermediate point before they have been delivered to the intended
recipient. The Australian Federal Police (AFP) cited advice from the
Commonwealth Director of Public Prosecutions that section 3L of the Crimes
Act 1914 (as amended by the Cybercrime Act 2001) allows officers
acting under an ordinary search warrant to access both read and
unread emails found on a computer, including any stored 'remotely',
for example on equipment operated by an internet service provider (ISP).
According to the AFP:
the intention of 3L was clearly to allow access to stored
communications held remotely under the auspices and accountabilities of
the search warrant regime.(3)
Contradicting the AFP's advice, the Attorney-General's Department submitted
a legal opinion from the Commonwealth Solicitor-General which said that
the current operation of the Telecommunications (Interception) Act:
would…preclude a law enforcement agency from accessing an
email stored at an intermediate point in transit, such as an ISP, in circumstances
where that communication has not previously been accessed by the intended
recipient, without a telecommunications interception warrant.(4)
The amendments proposed by the Government in the February Bill assumed
that the current law required an interception warrant to access stored
communications and were intended to introduce exceptions to this requirement.
The AFP noted that if the amendments were enacted without an exemption
for law enforcement agencies seeking to use an ordinary search warrant
under section 3L of the Crimes Act, there would be 'severe operational
difficulties'.(5)
In its report the Committee said it was 'most concerned' by the disagreement
between the AFP and the Attorney-General's Department over the current
state of the law relating to stored communications and the proposed amendments
in the February Bill. It recommended that parliamentary consideration
of the amendments be deferred until:
Parliament is informed of agreement between the Attorney-General's
Department and the AFP on the current operation of the TI regime, and
how it will operate under the [proposed amendments].(6)
In his second reading speech the Attorney-General, Mr Ruddock, noted
that the amendments proposed in the current Bill 'address concerns expressed
by the AFP in relation to operational difficulties posed by the current
interception regime'.(7)
The current Bill is the third attempt by the Government to exempt 'stored
communications' in whole or in part from the protections and protocols
of the Telecommunications (Interception) Act.
In the Telecommunications Interception Legislation Amendment Bill 2002,
the Government proposed to allow access to most stored or delayed access
communications without an interception warrant. After concerns about
the effect on privacy of email communications were raised with the Senate
Legal and Constitutional Affairs Legislation Committee, the proposal was
removed from the final version of the 2002 Bill. According to the Federal
Privacy Commissioner, for example:
There seems to be little justification for reducing the privacy
protection of a communication as intimate as a voice mail message or SMS,
in comparison with a 'live communication' simply because the transmission
of the former is temporarily delayed.(8)
The amendments to the Telecommunications (Interception) Act proposed
in the February Bill were drafted with criticisms of the 2002 Bill in
mind. In his second reading speech for the February Bill, Mr Ruddock
said that it addressed ‘concerns expressed during consideration of the
earlier amendments’ by the Senate Legal and Constitutional Affairs Legislation
Committee.(9)
For a temporary period of 12 months, the current Bill will introduce
an exclusion from the Telecommunications (Interception) Act for 'stored
communications' which is broader in scope than that proposed in either
the 2002 Bill or the February Bill.
The earlier Bills proposed – for the purpose of the prohibition in subsection
7(1) of the Act against interception of communications 'passing over'
a telecommunications system - that in certain situations emails, text
messages, voice mail etc be deemed to be no longer 'passing over' any
such system. In other words, only part of the category of messages classed
as 'stored communications' would be outside the Telecommunications (Interception)
Act. In the February Bill, for example, an interception warrant would
still be required to access stored emails held on an ISP's server that
had not been read by the intended recipient.
The current Bill instead proposes that the prohibition in subsection
7(1) of the Telecommunications (Interception) Act not apply to 'stored
communications' generally, with limited exceptions. The explanatory memorandum
notes, for example, that an 'interception warrant will not be required
to intercept stored e-mail',(10) which would include emails
stored on an ISP's server, whether received by the intended recipient
or not.
Mr Ruddock explained in the second reading speech that the measures in
the Bill 'represent immediate and practical steps to address the operational
issues faced by our law enforcement and regulatory agencies'.(11)
There was also a need, however, for a 'more comprehensive review of access
to stored communications and the contemporary relevance of Australia's
interception regime'. Mr Ruddock observed that:
When the act was drafted almost 25 years ago, the Australian
telecommunications systems consisted largely of land based services carrying
live telephone conversations. The act was therefore built around a core
concept of communications passing over a telecommunications system. While
this concept is technologically neutral, its application has proven more
difficult to modern communications services…such as voice mail, email
and SMS messaging.(12)
Mr Ruddock announced that he had therefore asked the Attorney-General's
Department to conduct a 'comprehensive review' of the Telecommunications
(Interception) Act, and to report back to him before the amendments in
the Bill cease to have effect 12 months from the date of commencement.
Schedule 1 Item 2 adds new subsection 6E(3) to the Telecommunications
(Interception) Act which provides that a reference in the Act to 'lawfully
obtained information' does not include information obtained by intercepting
a 'stored communication', as long as the interception occurs within 12
months of the commencement of the current Bill. As the explanatory memorandum
notes, the effect is to exclude such information from the restrictions
on use and disclosure of intercepted material set out in Part VII of the
Act.(13) Section 63 of the Act, for example, contains a general
prohibition against 'lawfully obtained information' (i.e. information
obtained without an interception warrant) being communicated to another
person or being used in evidence in a proceeding.(14) Under
the current Bill, information obtained from interception of 'stored communications'
will not be covered by this prohibition.
Item 3 inserts new paragraph 7(2)(ad) to the Telecommunications
(Interception) Act which provides that the prohibition in subsection 7(1)
against interception of telecommunications without an 'interception warrant'
does not apply to 'stored communications' intercepted in the 12 month
period following commencement of the Bill. The explanatory memorandum
explains that the practical effect of this item is that:
it will no longer be necessary to obtain a telecommunications
interception warrant, or to rely on some other exception to the prohibition
against interception, in order to intercept a stored communication.(15)
Lawful access to the communication or the equipment on which it is stored
will still be required. The explanatory memorandum notes that this could
be through the consent of the intended recipient, under an ordinary search
warrant or using the right to lawful access of a network owner or administrator.(16)
Item 4 defines inserts new subsection 7(3A) in the Telecommunications
(Interception) Act which defines 'stored communication' for the purpose
of the Act as 'a communication that is stored on any equipment or any
other thing' with the exception of a 'voice over Internet protocol' communication
or any other communication stored on a 'highly transitory' basis. The
note to item 4 cites 'momentary buffering (including momentary
storage in a router in order to resolve a path for further transmission)'
as an example of storage of a 'highly transitory' nature.
The Government's intention to review 'the contemporary relevance of Australia's
current interception regime' is a first step towards resolving the multitude
of sometimes competing legal requirements concerning access to private
information. As the digest(17)
for the Surveillance Devices Bill 2004 noted:
If the [Surveillance Devices] Bill is passed it will add
to the number of different warrants that are available under different
statutes covering similar situations. There will also be new categories
of information and associated rules for using and communicating it (for
instance, three categories of information under the Bill in addition to
information covered by Part VII of the TI Act). There are also different
accountability regimes under the Bill and the TI Act. Further, entirely
different rules apply to search warrants under section 3L of the Crimes
Act.
Parliament may wish to consider whether this combination
of fragmentation and complexity will create unacceptable difficulties
for both law enforcement agencies and people who are placed under surveillance,
whose telecommunications are intercepted and whose computers may be accessed.(18)
In this context it would be useful for Parliament to be informed of,
and have the opportunity to comment on, the terms of reference for the
proposed review. A review of the Telecommunications (Interception) Act
and its adequacy in relation to new forms of communications technology
should be a central part of any review, but as the above quote indicates,
may not be sufficient in itself. Especially given disagreement between
key government agencies about operation of current laws, a broader review
appears to be needed to look at the range of situations in which some
form of warrant or other lawful authority is required for access to private
information, the adequacy of the various legislation covering such situations,
and options for simplifying and clarifying the existing legal regime.
Any such review should be tabled in Parliament, subject to appropriate
arrangements to safeguard sensitive operational information. This would
allow Parliament to assess both the adequacy of the review and the adequacy
of any legislation proposed as a response to the review.
It might be queried whether the 12 months allowed by the Government will
be sufficient time for the intended review to be completed, especially
if broader aspects of the legal regime covering obtaining of private information
are included. This appears to be a relatively short time to conduct a
review (including appropriate consultation), report to the Government
and draft resulting legislation to take the place of the provisions in
the current Bill.
The Senate Legal and Constitutional Affairs Legislation Committee called
for Parliament to be informed of agreement between the AFP and the Attorney-General's
Department about the practical effect of relevant legislation before any
further consideration of exempting 'stored communications' from the interception
regime in the Telecommunications (Interception) Act. In view of the
privacy (as well as operational) issues that are involved, which have
led to the defeat of previous Government proposals to introduce such an
exemption, it would be useful if the review process included at least
a consultation draft for all interested parties to comment on. It is
not only law enforcement and national security agencies that have an interest
in this issue, but also those with privacy responsibilities (such as the
Federal Privacy Commissioner and State and Territory counterparts) as
well as a wide range of organisations involved in or dependant on the
electronic communications industry.
The protections in the Telecommunications (Interception) Act were specifically
designed to balance law enforcement and national security needs with privacy
concerns in relation to personal communications. As the Government has
now identified, a key issue is how the legal regime in the Telecommunications
(Interception) Act (and in other legislation) should be adapted for new
communications technology not envisaged when the Act was enacted 25 years
ago.
An issue for Parliament is whether – despite the time limit of 12 months
on operation of the amendments in the current Bill – the approach proposed
by the Government effectively pre-empts any review. If an exemption
for 'stored communications' from the interception regime in the Telecommunications
(Interception) Act is in place for a year, will it be impractical to institute
some other legal regime, whatever the outcome of any review?
This is a significant issue, not least because the approach in the current
Bill will legalise what appears from the Senate Committee's report to
be a current practice of AFP to use ordinary search warrants to access
'stored communications' between private individuals even if those communications
have not been read. As noted above, the Attorney-General's Department
considers that current law does not authorise access in such a way.
In addition, Parliament might note that in the February Bill, the Government
tried to address concerns about the invasion of privacy raised in relation
to the 2002 Bill. But with the current Bill, the Government is proposing
an even broader exclusion – albeit temporary – from the protections of
the Telecommunications (Interception) Act for 'stored communications'
than that criticised in the 2002 Bill. Access to such communications
before they have been read by the intended recipient will be allowed under
the ordinary search warrant process, which has been designed to obtain
physical evidence not gain access to personal communications. Consequently
there is no specific requirement in the ordinary search warrant process
to consider privacy issues.
As Bills Digest
No 111 of 2003-04 noted:
Access to private communications…raises significant privacy
issues, not least the rights of third parties whose communications may
be accessed or about whom information may be revealed. Hence the Telecommunications
(Interception) Act allows for such issues to be taken into account before
an interception warrant is obtained, at least in relation to the less
serious 'class 2' offences. The Act…contains strict protocols on use
and handling of information collected by means of interception warrants…The
Act also contains extensive requirements both for keeping records of telecommunications
interceptions and for annual reporting by State and Commonwealth authorities,
including preparation of a detailed report for the Commonwealth Parliament.(19)
Parliament will need to consider whether exclusion of 'stored communications'
from the regime in the Telecommunications (Interception) Act for a 12
month period as proposed in the current Bill is justified by the operational
and practical reasons cited by the Attorney-General.
-
http://www.aph.gov.au/library/pubs/bd/2003-04/04bd111.pdf.
-
http://www.aph.gov.au/senate/committee/legcon_ctte/tel_intercept04/report/report.pdf.
-
Senate Legal and Constitutional Committee, Provisions of the Telecommunications
(Interception) Amendment Bill 2004, Canberra 2004, p. 16.
-
ibid.
-
ibid., p. 17.
-
Ibid., p. 27.
-
Philip Ruddock (Attorney-General), 'Second reading speech: Telecommunications
(Interception) Amendment (Stored Communications) Bill 2004', House
of Representatives, Debates, 27 May 2004, p. 29130.
-
Senate Legal and Constitutional Legislation Committee, Report
into Telecommunications Interception Legislation Amendment Bill 2002
and other Bills, Canberra 2002, p. 64.
-
Ruddock, 'Second reading speech: Telecommunications (Interception)
Amendment Bill 2004, Debates, 19 February 2004, p. 25230.
-
'Explanatory memorandum: Telecommunications (Interception) Amendment
(Stored Communications) Bill 2004', p. 6.
-
Ruddock, Stored Communications Bill, op. cit.
-
ibid.
-
Explanatory memorandum, p. 3.
-
Subsequent sections contain exceptions to this general prohibition.
-
Explanatory memorandum, p. 3.
-
ibid.
-
http://www.aph.gov.au/library/pubs/bd/2003-04/04bd147.htm.
-
Jennifer Norberry, 'Surveillance Devices Bill 2004', Bills Digest,
no. 147, 2003-04 Parliamentary Library, Canberra,.
-
Peter Prince, 'Telecommunications (Interception) Amendment Bill 2004,
Bills Digest no. 111, 2003-04 Parliamentary Library, Canberra.
Peter Prince
3 June 2004
Bills Digest Service
Information and Research Services
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