Australia/Universal surveillance

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Interest ofAnnika Smethurst

Universal surveillance of Australians is one of the most advanced in the world, after aggressive rolling back of civil liberties with a number of remarkably wide-reaching laws. The systematic effort has has gone in overdrive after the start of the COVID-19 deep event in March 2020. Australia does not have the right to freedom of speech or expression enshrined the constitution or legislation.

History

Pine Gap

In the 1970s, Prime Minister of Australia] Gough Whitlam attempted to close Pine Gap, a CIA run universal surveillance in Australia. He was removed from power in US Deep state-run bloodless coup in 1975.[1]

Laws

Assistance and Access Act

In the late 2010s, the Australian government introduced the Assistance and Access Act, also known as TOLA[2]', granting law enforcement legal powers to intercept and monitor encrypted communications, being called only second to the UK’s equally infamous 2016 Investigatory Powers Act, TOLA was still under review in 2020 and even expanded with the Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020, ignoring comments from the Australia’s Independent National Security Legislation Monitor (INSLM) and the Parliamentary Joint Committee on Intelligence and Security[3].

2012 Defence Trade Controls Act

Under the 2012 Defence Trade Controls Act law, “supplies of technology” come under a censorship regime involving criminal penalties of up to ten years imprisonment. One commentator has suggested that it has potential to "[catch] open source privacy software, information security research and education, and the entire computer security industry in its snare."[4]

2015 Nearly unlimited warrantless mass surveillance

After a 2015 bill claimed that the government had rights to carry out very broad warrantless mass surveillance of electronic media, including banning warrant canaries. The powers claimed were so broad that they have been called "nearly unlimited",[5] but efforts continue to expand their scope and use more resources to track and monitor citizens.

Australian Security Intelligence Organisation Amendment Bill 2020

The legislation extends the maximum detention the domestic intelligence service (ASIO) can detain people from seven days to up to 48 hours of interrogation over 28 days, and removes all limits on sequential 28 day warrants. It also removes all geographic limitations on where offenses were committed. The fact that one has been served the warrant is a state secret that one can’t tell anyone without express permission. Not while the warrant is in force (up to 28 days) and not for two years after the warrant expires, punishable with a 5-year prison sentence.

ASIO is able to issue Questioning Warrants in three matters:

a matter that relates to the protection of, and of the people of, the Commonwealth and the several States and Territories from any of the following:
(a) espionage;
(b) politically motivated violence;
(c) acts of foreign interference;
whether directed from, or committed within, Australia or not.[6]

The bill greatly expands ASIO’s powers beyond terrorism to “politically motivated violence.” A kid smashing an egg on a politician’s head will now fall into the same category as a terrorist.[7]

The important distinction between an ASIO Questioning Warrant and a criminal arrest warrant is that the person named in a questioning warrant doesn’t have to be accused nor even suspected of committing a crime (or planning one). The term foreign interference isn’t defined in the bill, which means it can be interpreted to mean just about anything related to non-Australians who could be involved in a matter that is seen to harm the country.

The subject of a questioning warrant is required to present himself at a certain place at a certain time as determined in the warrant and remain there until allowed to leave. Technically, it isn’t detention, but trying to leave without permission is a crime punishable with a 5-year prison sentence.[8]

The law also states that the person:

 be prevented from contacting a lawyer if the prescribed authority is satisfied that the subject has had reasonable opportunity to contact a lawyer.[9]

ASIO officers can share whatever information they received from the 24 hours of forced interrogation (without a lawyer present) with any court or prosecutors.

The law states that there is no right to silence:

The subject of a questioning warrant is not excused from:
(a) giving information; or
(b) producing a record or other thing;
that the Organisation requests, in accordance with the warrant, the subject to give or produce, on the ground that the information, or production of the record or thing, might tend to incriminate the subject in relation to an offence.[10]

and:

The subject of a questioning warrant commits an offence if the Organisation requests, in accordance with the warrant, the subject to:
i) give any information; or
ii) produce any record or other thing
and the subject fails to comply with the request.
Penalty: Imprisonment for 5 years[11]

2021 Identify and Disrupt Bill

In August 2021, Parliament passed the Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020[12], giving the Australian Federal Police (AFP), the Australian Criminal Intelligence Commission (ACIC) — and by extension, the Australian Signals Directorate the power to spy domestically.[13] The bill creates three new warrants, with the purported purpose of targeting “serious and organised crime” that utilise “anonymising technologies” online. The announcement of these warrants follows a $90 million injection of funding in the government’s already-existing and extensive surveillance and intelligence gathering capabilities.[14] The new powers will be particularly useful in the disruption of resistance to forced COVID-19 vaccine injections, lockdowns and related measures.

The Identify and Disrupt Bill included the legal power to "create and modify data on personal devices" and takeover practically any account that connected to the internet from that device or network for the investigation of any crime that carries a 3 year sentence, even creating loopholes for judges to authorize network activity warrants for other jurisdictions if the location of the device is unknown or cannot be reasonably determined, even if the device may be located in a foreign country, with all companies and individuals also forced to comply with, risking a 10 year jail sentence if not doing so, specifically also lowering the minimum age for compulsory questioning on terrorism-related matters to 14 years, with Minister of Home Affairs Peter Dutton calling MPs in parliament opposing the bills "Enemy of the State".[15]

The Bill provides three new warrants:

  • Data Disruption Warrants, which allow the AFP and the ACIC (or another person on the law enforcement officer’s behalf) the ability to “add, copy, delete or alter” files on a computer or device, so as to “frustrate the commission of crime”[16] where a law enforcement officer “reasonably suspects” that one or more “relevant offences” are “being, are about to be, or are likely to be” committed.[17]
  • Network Activity Warrants, which “allow agencies to collect intelligence on serious criminal activity being conducted by criminal networks” by intercepting communications and using surveillance devices on computer networks. The AFP and the ACIC are permitted to do “any thing reasonably necessary to conceal” their access and modification to computers, allowing the warrant to be conducted secretly. This is available where there is a “reasonable suspicion” that monitoring the network activity of a “criminal network of individuals” is “relevant to the prevention, detection or frustration of one or more kinds of ‘relevant offences.’”
  • Account Takeover Warrants, which provide agencies with the ability to take control of a person’s online account “through the modification of data” for the purposes of “gathering evidence to further a criminal investigation.” This is available where there is a “reasonable suspicion” that one or more “relevant offences” are “being, are about to be, or are likely to be” committed; an investigation is either imminent or in progress, and taking control of the “target accounts” is “necessary for enabling evidence to be obtained.”

Interestingly the advisory boards called for an independent board of publicly chosen individuals as the act made defending the warrants not necessary (even after scandals of untrained personnel within the divisions responsible), nor any requirement to inform an individual afterwards. The bill and process of introducing gathered a large wave of critics[18] from judges, activists, and companies like Mozilla (a small player with ~5% in worldwide market share) who owns internet browser Firefox[19], with the bill seemingly not affecting cybercrime, still costing Australia $3,5 billion in 2020.[20]

Citizenship revoked based on secret information

In August 2021, proposed legislation allow a visa to be cancelled or a person's citizenship revoked on the basis of confidential information provided by government agencies. The information provided by gazetted agencies - such as foreign law enforcement bodies and other Australian agencies - can be used without the person knowing the information is being used or having a chance to respond to the information itself[21]. The Identify and Disrupt Bill allows intelligence agencies to put false information on to a persons devices, which could then be stamped as "confidential" and used to revoke a citizenship.

eSafety Commission

To enforce two censorship laws, the Online Safety Act 2021 (OSA) and a separate, companion bill, The Online Safety (Transitional Provisions and Consequential Amendments) Act 2021, the government created the eSafety Commission, a regulatory agency. The laws give powers that the government haven't been able to obtain in other surveillance acts attempted introduced over the years., including the power to have certain content pulled from platforms.[22]

The OSA gives eSafety[23] (until 2021 ACMA) substantial new powers, a "robust range of regulatory options" to "promote safer, more positive online experiences".[24] Hiding behind "protecting children"[25] and the vaguer "terrorist material and extreme violent material," it will also include all sexual images of consenting adults. The powers will be broadened "for time-limited periods in crisis situations"[26] (presumably in the continuation of COVID-19).

In February, 2020, the eSafety Commission released a position statement wanting to end private end-to-end encryption communications[27]

CCTV

Full article: Rated 5/5 CCTV

As of 2017, Australia was continuing to expand mass surveillance, spending $18.5M on iOmniscient, a system which "works by analysing images recorded by existing CCTV cameras.”[28]

Data retention

The Australian Department of Home Affairs said in December 2018 that it would take "considerable time and resources" for it to determine how many agencies across Australia's three tiers of government have accessed metadata held under the nation's data retention laws.[29]



References

  1. http://one-just-world.blogspot.com/2016_02_01_archive.html
  2. https://www.inslm.gov.au/submissions/tola
  3. https://theconversation.com/why-we-need-to-fix-encryption-laws-the-tech-sector-says-threaten-australian-jobs-110435
  4. http://www.gizmodo.com.au/2015/12/in-australia-even-learning-about-encryption-will-be-illegal-soon/
  5. http://boingboing.net/2015/03/26/australia-outlaws-warrant-cana.html
  6. https://parlinfo.aph.gov.au/parlInfo/download/legislation/bills/r6554_aspassed/toc_pdf/20073b01.pdf;fileType=application%2Fpdf
  7. https://theostrichhead.com/australias-new-security-law-removes-all-limits-to-detention/
  8. https://parlinfo.aph.gov.au/parlInfo/download/legislation/bills/r6554_aspassed/toc_pdf/20073b01.pdf;fileType=application%2Fpdf page 63
  9. https://parlinfo.aph.gov.au/parlInfo/download/legislation/bills/r6554_aspassed/toc_pdf/20073b01.pdf;fileType=application%2Fpdf page 46
  10. https://parlinfo.aph.gov.au/parlInfo/download/legislation/bills/r6554_aspassed/toc_pdf/20073b01.pdf;fileType=application%2Fpdf page 80
  11. https://parlinfo.aph.gov.au/parlInfo/download/legislation/bills/r6554_aspassed/toc_pdf/20073b01.pdf;fileType=application%2Fpdf page 80
  12. https://melbactivistlegal.org.au/2021/08/26/identify-and-disrupt-bill/ This link gives a longer explanation of the law
  13. Dark web crime: how Australia’s powerful new warrants would work, the Guardian, 3 December 2020.
  14. https://www.itnews.com.au/news/australian-govt-makes-play-for-sweeping-online-account-takeover-powers-558546
  15. https://www.theguardian.com/australia-news/live/2020/dec/10/australian-politics-live-coalition-scott-morrison-industrial-relations-christian-porter-covid-19-politics-business-economy?page=with:block-5fd16c108f08afb1724b7615#block-5fd16c108f08afb1724b7615
  16. https://parlinfo.aph.gov.au/parlInfo/download/legislation/ems/r6623_ems_e2ab793d-9b5f-47db-aa3e-0498cb581918/upload_pdf/JC003346_Revised%20Explanatory%20Memorandum.pdf;fileType=application%2Fpdf
  17. https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r6623
  18. https://tutanota.com/blog/posts/australia-surveillance-bill/
  19. https://digitalrightswatch.org.au/2021/09/02/australias-new-mass-surveillance-mandate/
  20. https://www.sbs.com.au/language/english/audio/cyber-crime-costs-australian-economy-3-5-billion-per-year
  21. https://www.sbs.com.au/news/legal-experts-have-criticised-the-government-s-proposed-amendments-to-visa-and-citizenship-laws/0287a0ce-229d-44f6-b3bb-4e86bcc46d5f
  22. https://www.melrosemichaels.com/post/it-s-surveillance-in-a-trenchcoat-assembly-four-decodes-australia-s-new-online-safety-act
  23. eSafety.gov.au
  24. https://www.esafety.gov.au/about-us/who-we-are/regulatory-schemes#online-content-scheme
  25. https://www.esafety.gov.au/sites/default/files/2022-02/OSA%20fact%20sheet%20updated.pdf
  26. https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fems%2Fr6680_ems_f7624783-0b1b-4476-af1d-b6358c8fa48c%22
  27. https://www.esafety.gov.au/sites/default/files/2020-05/eSafety-E2EE-position-statement.pdf
  28. http://anonhq.com/australian-govt-ramps-18-5m-citizen-surveillance-capability-iomniscient-technology/
  29. http://corpau.blogspot.com/2018/12/home-affairs-cannot-be-bothered-listing.html