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Article - B-Party Intercepts and the Telecommunications (Interception) Amendment Act 2006 (Cth) (January 2007)

• Background
  • Stored communications
    • Main Amending Provisions of the Act
    • Controversy
• Conclusion
• Summary

Saira Ahmed, Research Consultant, Galexia

Related Galexia services and solutions Specialised Legal and Regulatory Consulting. Read more » Published Internet Law Bulletin, volume 10, number 1, 2007

Australia has recently passed legislation that will enable the Australian Security Intelligence Organisation (ASIO) and other law enforcement agencies to intercept telecommunications of third parties including emails, SMS and voicemail messages. The relevant provisions of the Telecommunications (Interception) Amendment Act 2006 (Cth)[1] came into effect on 13 June 2006. These provisions amend the Telecommunications (Interception) Act 1979 (Cth)[2] (‘the Act’) to insert a warrant regime for access to stored communications held by a telecommunications carrier and enable interception of telecommunications of an innocent person known to communicate with a person of interest - known as ‘B-Party’ intercepts. This article discusses the main provisions of the Telecommunications (Interception) Amendment Act 2006 (Cth) and the controversy surrounding these amendments. These provisions are significant for lawyers advising clients on cooperation with law enforcement authorities in relation to telecommunications, including emails.

Background

Stored communications

Under the Telecommunications (Interception) Act 1979 (Cth), the interception of stored communications was prohibited except when authorised by an interception warrant. Since 2002, the government has been attempting to introduce amending provisions to the Act governing stored communications.

The Telecommunications (Interception) Legislation Amendment Bill 2002 (Cth) was introduced in March 2002 as part of a package of counter-terrorism legislation. These amendments sought to allow government agencies to intercept stored communications without the need for a warrant of any sort. However the amendments were rejected by the Senate.

In May 2004, the Telecommunications (Interception) Amendment (Stored Communications) Act 2004 (Cth) was introduced and subsequently passed by Parliament. These amendments removed the prohibition against the interception of stored communications without an interception warrant. Stored communications could therefore be accessed by other lawful measures such as a search warrant. These amendments were subject to a 12-month sunset clause during which time the government stated that it would undertake a comprehensive review of the regulation of access to communications in Australia. The sunset clause was later extended until 14 June 2006 to allow the government time to consider the recommendations of the review. The Report of the Review of the Regulation of Access to Communications (the ‘Blunn Report’)[3] was presented to Parliament on 14 September 2005. The key recommendations of the Blunn Report in relation to stored communications included:

• The distinction between real time access (interception) and access to stored data be maintained;
• Access to stored communications continue to be authorised by search warrant but those warrants be required to meet minimum prescribed standards; and
• In the context of accessing stored communications any specific reference to Voice over Internet Protocol (VoIP) is unnecessary and should be removed.

On 16 February 2006 the Telecommunications (Interception) Amendment Bill 2006 (Cth) was introduced in the House of Representatives. The stated purpose of the Bill was to amend the Telecommunications (Interception) Act 1979 to implement certain recommendations of the Blunn Report. The Telecommunications (Interception) Amendment Act 2006 (Cth) was passed by Federal Parliament on 30 March 2006 and received royal assent on 3 May 2006.

Main Amending Provisions of the Act

Schedule 1 - Stored communications

Schedule 1 introduces a warrant regime for access to stored communications held by a telecommunications carrier. ‘Accessing a stored communication’ is defined in a new s. 6AA of the Act as listening to, reading or recording such a communication, by means of equipment operated by a carrier, without the knowledge of the intended recipient of the communication. Surveillance of stored communications is therefore covert.

• Item 1 inserts a definition of stored communication into s. 5(1) of the Act. A stored communication is a communication that:
  • 1. Is not passing over a telecommunications system.
    The Explanatory Memorandum to the Bill[4] states that the communication must have passed over a telecommunications system. A stored communications warrant is therefore not available for communications that have been prepared but not been sent. E.g. draft emails.
    
    Item 2 inserts a new section 5F into the Act, which provides further explanation as to the meaning of ‘passing over a telecommunications system’. It states that a communication is taken to start passing over a telecommunications system when it is sent or transmitted by the person sending the communication. It ceases to pass over the telecommunications system when it is accessible to the intended recipient of the communication.[5] This means that a stored communications warrant only applies to communications that the intended recipient is able to access.
  • 2. Is held on equipment that is operated by, and is in the possession of, a carrier.
    The Explanatory Memorandum to the Bill states that the purpose of this provision is to ensure that the stored communications warrant regime does not affect the ability of law enforcement agencies to continue to use existing lawful access arrangements to access communications stored on a person’s telecommunication device.[6] For example where a person is in lawful custody and a general search warrant has been obtained over the person’s mobile telephone or computer.
  • 3. Cannot be accessed on that equipment, by a person who is not a party to the communication, without the assistance of an employee of the carrier.
• Item 9 inserts a new Chapter 3 into the Act, which governs access to stored communications. Part 3-1 creates a general prohibition on access to stored communications held by a telecommunications carrier subject to a number of exceptions. The exceptions are listed in s. 108(2) and include accessing a stored communication under a stored communications warrant. A stored communications warrant will be available to an enforcement agency that is investigating an offence punishable by a maximum period of imprisonment of at least 3 years or a fine of at least $19,800.[7]

Schedule 2 - B-party interception

The Blunn Report defines B-Party intercepts as occurring:

Where there is evidence that a person, other than a person suspected of involvement in the prescribed crime, the B-Party, is using a telecommunications service for communications which are believed to be relevant to the investigation. The B-Party may simply be a conduit for a relevant communication and may not even be aware of the use being made of them.[8]

Schedule 2 amends the telecommunications service warrant provisions of the Act to enable interception agencies to obtain telecommunications service warrants in relation to B-Party intercepts in certain circumstances.

• Item 1 inserts a new s. 9(1)(ia) into the Act which allows the Attorney-General to issue a telecommunications service warrant to ASIO where a third party ‘receives or sends a communication from or to another person who is engaged in, or reasonably suspected by the Director-General of Security of being engaged in, or of being likely to engage in [activities prejudicial to security].’
• Item 7 amends s. 46(1) of the Act to provide a similar broad power where certain law enforcement agencies apply to an eligible Judge or nominated Administrative Appeals Tribunal member for a telecommunications service warrant. A warrant can be issued in relation to a person who is involved in the commission of a ‘serious offence’,[9] or a person who communicates with such a person.

Prior to issuing a telecommunications service warrant for B-party intercepts, the issuing authority must be satisfied that the interception agency has exhausted all other practicable methods of identifying the telecommunications service used or likely to be used by the person of interest or that it is not possible to intercept the telecommunications used or likely to be used by the person of interest.[10]

Controversy

Critics have voiced concerns at the lack of substantive consultation over the amendments to the Act. The amendments were rushed through the Senate on the premise that they are necessary to address terrorism and threats to national security.

Most of the controversy surrounds the provisions relating to B-Party interception. Privacy advocates including the Australian Privacy Foundation expressed concern about the substantial invasion of privacy of innocent persons.[11] ASIO and other law enforcement agencies will have the ability to covertly intercept telecommunications of innocent third parties simply because they communicate with a suspect.

There is further criticism over the fact that interception extends to all communications of the third party not just those that are relevant to the investigation. This will result in the unnecessary collection of vast amounts of personal information. The Blunn Report recommended a number of controls be imposed on obtaining a B-Party interception warrant including that the agency applying for a warrant must establish to the issuing authority that the intercepted information is material to the investigation. Yet these vital safeguards have failed to be incorporated into the Act.

The stored communications warrant regime has also come under criticism. There are concerns about the differing standards prescribed by the Act for accessing stored communications in comparison to those that apply to accessing live communications, in particular, the threshold that applies to obtaining a stored communication warrant. Stored communications warrants are available for the investigation of a ‘serious contravention’ punishable by a period of at least 3 years imprisonment or a fine of at least $19,800.[12] In contrast, interception warrants for accessing live conversations are only available for the investigation of a ‘serious offence’ punishable by a period of at least 7 years imprisonment.[13] Critics argue that the higher threshold that applies to accessing live communications should similarly apply to accessing stored communications, which often contain information just as private as peoples’ live conversations.

Conclusion

The Act as passed appears to be a compromise between the government, the recommendations of the Blunn Report and privacy advocates. The final provisions incorporated into the Act are not as broad as the government sought but at the same time not as limited as privacy groups and the Blunn Report recommended. Whilst recognising the benefits of B-Party interception warrants, the Blunn Report emphasised the need for privacy protections to accompany such provisions. In relation to stored communications warrants, privacy groups argued that the same threshold that applies to accessing live communications should apply to accessing stored communications. Without these important safeguards the Act as it currently stands fails to protect the fundamental right of an individual’s privacy.

Summary

 

Saira Ahmed is a Research Consultant at Galexia.

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[1] Telecommunications (Interception) Amendment Act 2006 (Cth), <http://www.comlaw.gov.au/comlaw\management.nsf/lookupindexpagesbyid/IP200614846>.

[2] Note: pursuant to the Telecommunications (Interception) Amendment Act 2006 (Cth), the Telecommunications (Interception) Act 1979 (Cth) has been renamed the Telecommunications (Interception and Access) Act 1979 (Cth) to reflect the insertion of the stored communications access provisions.

[3] Blunn, A S, Report of the Review of the Regulation of Access to Communications, August 2005, <http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(CFD7369FCAE9B8F32F341DBE097801FF)~xBlunn+Report+13+Sept.pdf/$file/xBlunn+Report+13+Sept.pdf>.

[4] Explanatory Memorandum to the Telecommunications (Interception) Amendment Bill 2006, <http://www.comlaw.gov.au/comlaw/legislation/bills1.nsf/0/816D9E25E76473B1CA2571180012980D/$file/06010EM.pdf>.

[5] New sections 5G and 5H clarify the meaning of the ‘intended recipient of a communication’ and ‘when a communication is accessible to the intended recipient’.

[6] Refer to footnote NOTE252, page 5.

[7] Telecommunications (Interception and Access) Act 1979 (Cth), section 5E.

[8] Refer to footnote NOTE251, page 75.

[9] ‘Serious offence’ is defined in section 5D of the Act as an offence punishable by a period of at least 7 years imprisonment.

[10] Telecommunications (Interception and Access) Act 1979 (Cth), section 9(3).

[11] See for example Australian Privacy Foundation, Telecommunications (Interception) Amendment Bill 2006 - Inquiry by the Senate Legal & Constitutional Committee, Submission by the Australian Privacy Foundation, March 2006, <http://www.aph.gov.au/senate/committee/legcon_ctte/ti/submissions/sub04.pdf>.

[12] Telecommunications (Interception and Access) Act 1979 (Cth), section 5E.

[13] Telecommunications (Interception and Access) Act 1979 (Cth), section 5D.

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