The Australian Privacy Foundation (APF) has warned that the <i>Cybercrime Legislation Amendment Bill 2011</i> has the potential to invade the rights of individuals and grants additional access to information by a range of agencies.
Speaking during the Joint Select Committee hearings in Canberra, APF board member, Nigel Waters, said the APF's main concerns were that the Bill went beyond mere cybercrime investigations and that the rights of Australians to privacy online could be compromised by the passing of the Bill which would mean that Australia can apply for membership to the European Convention on Cybercrime.
He pointed out that communications were moving from real time phone calls into stored communications and online traffic data was also much more revealing about individual’s communications.
"Rules about the access of content do not apply at the [data] traffic end yet, but we see law enforcement agencies seeking access to traffic data," Waters said.
"Traffic data, we point out, is not subject to a warrant regime so the assertion that we should be satisfied that there will be a warrant application is misleading because that doesn’t apply in the case of traffic data."
Waters added that the APF was also concerned that warrants were now available both for content and stored communications to more agencies for a wider range of offences than in the past.
"These warrants are now issued by members of the Administrative Appeals Tribunal rather than [federal] judges," he said. "With respect to the AAT members, they are not as independent as judges were.
"There is also a higher incidence of [data] interception in Australia on a per capita basis than almost anywhere else in the world including the United States," he said.
According to Waters, the definitions of cybercrime in the Bill were "far too broad", such as the definition of telecommunications data and its relationship to the definition of stored communications.
That was because the definition of telecommunications data could provide a backdoor for law enforcement agencies to seek access to bulk stored communications and data which would take it into the area of data retention.
"It’s important in our view that the committee seeks an explanation about the government’s intentions in relation to preservation which has been a very controversial debate, particularly in Europe," Waters said.
Concerns about the breadth of definition of agency access to data was also raised because, according to Waters, its reading of the Bill was that preservation orders were being able to be sought by a wide range of agencies, not just primary law enforcement agencies.
"There are no specific security or integrity obligations and whilst the security requirements in the various privacy laws may apply in some cases to some of the [law enforcement] agencies concerned, we think that’s not good enough and there should be specific obligations in this bill if it was to proceed," he said.
Access by foreign countries to data during cybercrime investigations was also highlighted and Waters called on the committee to ensure that the foreign countries that were able to take advantage of the provision of the Bill should be limited to those who have "adequate protection for human rights and civil liberties."
"All of the European parties to the Convention on Cybercrime are subject to the Convention on Human Rights and that is a gap in Australia which needs to be balanced in the absence of any general human rights legislation to privacy in the bill.
There is a meaningless privacy test which on the face of it looks good. However, it requires authorising authors to have regard to privacy but no real way of ensuring that they actually take any notice of privacy," Waters said.
He told the committee that the APF believes that the privacy test should be pinned down to ensure there was a balance between citizen privacy and the interests of law enforcement agencies.
"We are also concerned about the cross border regime where there appears to be no way of guaranteeing or enforcing limitations that are supposedly placed on overseas law enforcement agencies who are in receipt of any data resulting from this regime," he said.
Overall, according to Waters, there should be a much greater degree of transparency and the rights of the individuals to find out that they have been subjected to an investigation by either local or foreign law enforcement agencies.
"We believe the Bill has been placed before parliament in a way that obstructs understanding of its meaning and analysis of its impact. The Bill seeks to impose all the intrusive elements of the convention without allowing for the conventions’ presumption that strong human rights projections are in place," he said.
As a result, the provisions to the Bill would create "grossly unbalanced and excessive" legislative powers and that despite its claimed purpose the Bill went beyond what was necessary in order to gain access to the European Convention on Cybercrime.
"The Privacy Foundation submits that the committee must find that in its present form the bill is completely unacceptable and should be sent back to the Department [of the Attonery-General] for further work," Waters said.
The European Convention on Cybercrime has plans for an international coordinated approach to cybercrime by requiring countries to criminalise four types of offences, including offences against the confidentiality, integrity and availability of computer data and systems, illegal access to computer systems, illegal interception, content-related offences, including child pornography, and offences related to the infringement of copyright and other related rights.
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