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Government should better explain need for expanded police powers

Posted By on October 7, 2021 @ 13:01

When the Australian parliament passed the Surveillance Legislation Amendment (Identify and Disrupt) Bill [1] 2021 (SLAID) in August, research institutes [2] and news media [3] voiced concerns about an erosion of civil liberties—for just a few days.

The law grants new powers to the Australian Federal Police and the Australian Criminal Intelligence Commission in an age where technological advances have provided criminals with more devices, digital tools and dark spaces online. Key threats are the production and trading of child exploitation material, the promotion of violent extremist content and activities, and the conduct of organised crime business including the illicit drug trade.

Just a few years earlier, the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (TOLA [4]) gave the AFP and ACIC limited access to encrypted data to observe and collect evidence online and from the internet of things to prosecute criminal activity.

Home Affairs Minister Karen Andrews justified the expansion [5] of powers by saying it was needed to protect communities, especially children, from transnational and local organised crime groups using the ‘dark web’ to do business.

The threats [6] to Australians from these activities are serious, and policing the intersecting and increasing dangers presented by advances in digitisation and technological innovation is critical.

‘Think of the children’ and ‘keep communities safe’ justifications have been rolled out in Australia since the 9/11 terror attacks catalysed [7] a rapid expansion of national security legislation. The 2015 Data Retention Bill [8] began a wave of ‘hyper-legislation’ [9] to police cyberspace that was vast in terms of the number of bills, the speed with which they passed parliament, the uncertain safeguards against scope creep and the rushed consultation with relevant industry.

The TOLA Bill passed in 2018 and was followed by the International Production Orders Act 2020 [10], the Online Safety Act 2021 [11] and then SLAID.

The security versus liberty debate is, however, no longer tipping in agencies’ favour.

Australians need more clarity on what these powers mean for them, including how the various pieces of legislation might interact and affect them. They need a justification with more nuance than ‘won’t somebody please think of the children’ and hashtag terrorism.

Strong debate is a good indicator of a healthy democracy. But Australians’ trust in government has trended steadily downward [12]s over the past decade (despite a short-term increase [13] in the early stages of the Covid-19 pandemic in 2020). This trend, and the persistent, unresolved concerns voiced about these laws by civil society, academia and the federal opposition (which backed them on condition that there would be a review), show that Australians are no longer compelled by the well-meaning justifications relied on by Andrews in announcing SLAID and by AFP Commissioner Reece Kershaw in using TOLA during Operation Ironside.

Each time a new bill is passed or a new power is used, the debate is framed by government officials through this binary logic. And when civil society disputes the decision in favour of security, the response is an effort to justify that calculation, as though resolving the tension between the two equally critical parts is necessary to figure out how a state can police cyberspace without eroding democracy.

This frames the discussion as one to be resolved (‘Pick which principle you value more’) before we can move on to discuss what we implement based on that decision. That’s become a roadblock to advancing the democratic project into the digital age.

We must acknowledge that a permanent tension between rights and security is fundamental to democracy. It’s not a binary choice to be resolved on a case-by-case or bill-by-bill basis.

Parliamentary debate and government messaging need to move beyond the binary and get into the details. This is an opportunity to progress the security agenda of rising to new cyber threats while building back Australians’ trust.

That might sound lofty and aspirational, but it’s how we’ll maintain the necessary, healthy balance of values, and engage in practical discussions about what we can do to regulate the use of a huge range of new and emerging technologies (on a case-by-case basis), without sacrificing either security or freedom. Artificial intelligence, for example is a large and growing field, and different types and iterations of AI should be used, regulated and restricted in different ways.

Earlier this year, the head of the Australian Security Intelligence Organisation, Mike Burgess, announced [14] his commitment to making ASIO ‘more open and transparent’. A foundational step in rebuilding trust in government regarding increased security powers is to bring the digital and cyber spheres, plus the legislation that regulates them, similarly out of the shadows.

Government messaging that aims policing powers at the ‘dark web’ makes it hard for people to understand if or how their daily lives and liberty might be affected. The argument makes it sound as if the internet and the internet of things are spaces that have ‘gone dark’ to intelligence and so this legislation will allow agencies to look at everything people do online. What’s really meant is that established surveillance practices can’t follow criminals into cyberspace where they communicate anonymously using encrypted messaging apps or online forums, meaning that agencies can’t tap criminals’ communication the way they could when it took place over the telephone. The actual dark web [15] isn’t visible to search engines, can only be accessed using an anonymising browser and is host to a significant amount of criminal activity.

SLAID introduces four new warrants that the AFP and ACIC can seek to disrupt data, access data on devices and networks, and take over accounts to access data. It doesn’t enable wholesale, unregulated access to all citizens’ data. But it’s not clear where SLAID draws the lines between no access and complete access, and between the ‘dark web’ and non-criminal accounts and devices.

Given the hyper-legislation trend, it’s increasingly difficult to see how different laws might interact to have unforeseen effects. For example, will TOLA plus SLAID allow international partner agencies to access data of third-party nations’ citizens that’s hosted in foreign data centres?

If, to find out how these powers can affect you, you must have the time and resources to read and interpret a 156-page bill [16], and hopefully a law degree, the importance of clear, layperson-friendly government messaging on what the new powers mean for how people live out the security–liberty balance cannot be overstated.

With recent riots showing how widely anti-government, accelerationist far-right narratives are resonating in Australia, the uncertainty about how the technology and the law work, and how ‘authoritarian’ this legislation might be, is a vulnerability the federal government can’t afford.

Australians trust our government less despite 20 years of increases in intelligence and policing powers to keep them safe. This suggests a population becoming more worried about how government impedes daily life, and less worried about terrorism.

Rebuilding this trust while also responding to increased criminal threats requires government messaging that makes digital technology and cyberspace real to everyone.

People don’t trust what they don’t understand, and given the speed of advancements in digital technology and legislation to match it, the conditions for distrust are prime. I have a PhD in law and research in this area, and I’m still trying to understand it.

Australia has a demonstrated capacity to communicate the real, tangible impacts of policy and to generate buy-in from the electorate in the health and human services field: road safety, AIDS awareness, even Covid lockdowns. The government needs to reconnect security agencies with the electorate by investing in making information on digital technology and regulation clear and intelligible.

The hyper-legislation trend in police and intelligence powers means that parliament adds and amends bills frequently in response to technological advancement. That’s building a network of legislation and powers that are increasingly difficult to understand and not adaptable as technology changes.

New bills should be rendered fit for purpose through unrushed, considered parliamentary debate and meaningful industry consultation and co-design and should be adaptable to ongoing technological advancement. They should be accompanied by government messaging and research making clear how they’ll work.

Industry consultation is treated as a mandatory box-ticking exercise. A rushed process such as that which produced TOLA suggests it’s not undertaken to gain or incorporate meaningful insights from industry. Meanwhile, industry relies on the government for guidance in designing technology that’s safe [17], as advocated compellingly by the eSafety Commissioner.

To design and implement regulations according to democratic values, the government needs to bring industry into the process meaningfully. If it doesn’t, it risks never fully understanding the implications of new bills and creating an incessant need for more legislation as industry pushes technology forward.



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URL to article: https://www.aspistrategist.org.au/government-should-better-explain-need-for-expanded-police-powers/

URLs in this post:

[1] Bill: https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r6623

[2] research institutes: https://www.hrlc.org.au/news/2021/8/25/insufficient-safeguards-in-new-surveillance-law

[3] news media: https://www.theguardian.com/australia-news/2021/aug/26/tony-abbott-and-kevin-rudd-could-be-spied-on-by-asio-under-new-laws-heres-why

[4] (TOLA: https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r6195

[5] justified the expansion: https://minister.homeaffairs.gov.au/KarenAndrews/Pages/new-powers-to-combat-crime-on-the-dark-web.aspx

[6] threats: https://www.aspistrategist.org.au/protecting-australia-beyond-its-traditional-borders-apps-and-policing-in-the-internet-age/

[7] since the 9/11 terror attacks catalysed: https://bel.uq.edu.au/article/2021/09/australian-counter-terror-laws-are-we-safer

[8] Data Retention Bill: https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r5375

[9] hyper-legislation’: https://www.cambridge.org/au/academic/subjects/law/law-general-interest/911-effect-comparative-counter-terrorism?format=PB

[10] International Production Orders Act 2020: https://www.aph.gov.au/Parliamentary_Business/Bills_LEGislation/Bills_Search_Results/Result?bId=r6511

[11] Online Safety Act 2021: https://www.aph.gov.au/Parliamentary_Business/Bills_LEGislation/Bills_Search_Results/Result?bId=r6680

[12] trended steadily downward: https://scanloninstitute.org.au/sites/default/files/2021-02/SC2020%20Report%20Final.pdf

[13] short-term increase: https://www.theguardian.com/australia-news/2020/dec/17/australians-trust-in-governments-surges-to-extraordinary-high-amid-covid

[14] announced: https://www.asio.gov.au/publications/speeches-and-statements/director-generals-annual-threat-assessment-2021.html

[15] dark web: https://www.csoonline.com/article/3249765/what-is-the-dark-web-how-to-access-it-and-what-youll-find.html

[16] 156-page bill: https://parlinfo.aph.gov.au/parlInfo/download/legislation/bills/r6623_aspassed/toc_pdf/20144b01.pdf;fileType=application%2Fpdf

[17] designing technology that’s safe: https://www.esafety.gov.au/about-us/safety-by-design

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