Law enforcement agencies would gain new powers to conduct covert surveillance on electronic devices and compel technology companies to assist in decrypting private communications under proposed legislation.
The minister for law enforcement and cyber security, Angus Taylor, released an exposure draft of the bill on Tuesday that would extend obligations to tech giants including Facebook, Apple and Google to assist police and other agencies.
Taylor said more than 90% of data intercepted by the Australian federal police used some form of encryption, which has “directly impacted around 200 serious criminal and terrorism-related investigations in the last 12 months alone”.
“We must ensure our laws reflect the rapid take-up of secure online communications by those who seek to do us harm,” he said.
Under the legislation, where a warrant has already been issued to intercept telecommunications, the director general of security or head of an intercepting agency can then issue a “technical assistance notice” for a company to assist in decryption.
A notice requires the company to give assistance where it is “reasonable, proportionate, practicable and technically feasible”, such as using an encryption key held by the company or giving access to devices or services.
Assistance could also include removing a form of electronic protection applied by the provider or providing technical information such as the design specifications of a device or the characteristics of a service.
End-to-end encryption – in which users hold the encryption key for their information – may still be protected and beyond the reach of law enforcement.
The attorney general would gain a power to issue a “technical capability notice” requiring a communications provider to build a new capability that would enable it to give assistance to Asio and interception agencies.
However, the bill explicitly provides that the new industry assistance powers cannot be used to compel communications providers to build weaknesses into their products. Nor can they be prevented from fixing existing systemic weaknesses.
The bill introduces a new form of “computer access warrant” to allow law enforcement agencies to covertly obtain evidence directly from a device, if approved by a judge or member of the administrative appeals tribunal.
Warrants would allow agencies including police and anti-corruption bodies to remove computers, copy data and to conceal their activities from the person under surveillance.
Before seeking a warrant, the law enforcement agency must have reasonable grounds to suspect an offence carrying a term of three years or more in prison “has been or will be committed” and that access to data is “necessary to obtain evidence of the offence or information about the offenders”.
The bill adds a new definition of “account-based data” to allow warrants to extend to information associated with an online account, such as an email service or Facebook account.
The Australian Border Force will also gain a new power to request a search warrant to be issued in respect of a person for the purpose of seizing a computer or data storage device.
The legislation increases the penalty for refusing to provide evidence held in a device to the ABF from six months to five years imprisonment – or 10 years for serious offences. ABF must have a warrant to conduct a search.
Greens digital rights spokesman Jordan Steele-John said that encrypted messaging services - which are also used by Australian politicians - were popular means of keeping private information secure in the face of “intrusive data-gathering practices introduced by governments and security agencies”.
“This new legislation ... is a direct response to people wanting to keep their personal and private data safe and it is a massive over-reach by this government,” he said.
Steele-John said the legislation would allow security agencies to install software to capture data as it is decrypted on the receiving end “undermining the very principle of end-to-end encryption”.
Taylor said the reforms “will allow law enforcement and interception agencies to access specific communications without compromising the security of a network”.
Labor has previously offered to “work with the government to put in place practical national security measures” and called for extensive consultation on the measures.