Simon Bronitt and James Stellios Regulating Telecommunications Interception and Access: A Seachange in Surveillance Laws ANU College of Law, The Australian National University
Key Issues and Questions • The 2006 Act represents a landmark reform to the telecommunications interception regime in Australia. • New power to access stored communications provide state with further tools for security and law enforcement purposes. • Legal & Policy Issues • What is the impact of the new legislative scheme? • Are existing safeguards effective? • Has privacy have been ‘balanced’ away in favour of providing state with enhanced surveillance tools? • Is a balancing approach wrong?
Interception Regime • Trends since 1979: • Normalization of Extraordinary Powers • The Emergence of Regulatory Surveillance: Beyond Serious Crime • From Prohibition to Permission • From Intelligence-Gathering to Evidence-Gathering • From Federal to National Surveillance • From Judicial to Administrative Control
The Surveillance Seachange? Seachange … a ‘noticeable and unexpected transformation’ (Oxford English Dictionary) TI versus TIA Surveillance • ‘Live’ Interception versus access to stored data • Surveillance Warrant: The New Form of Search Warrant • More or Less Privacy intrusive? • SMS & Email Deserving Less Protection (or Y-Gen Prejudice)? • Debased Process of Law Reform
Human Rights and Remedies ‘Front End’ versus ‘Back End’ Accountability Demise of Class 1 and Class 2 Warrants Citizen Suits? Effective or Illusory remedies? Privacy: Paramount or Subordinate?
Telecommunications Interception Amendments (TIA) • New security/law enforcement tools: • Device specific warrants • B-Party warrants • Regulation of stored communications
The Warrant System • Two ways in which privacy is protected: • Privacy as a factor in issuing process • Use of judges in issuing process • Reality does not match theory: • Privacy likely to be outweighed by law enforcement/security purposes • Judges have a limited role in process
Warrants Issued • Number of Warrants Issued in 2004-05 by Fed. Court Judges, Family Court Judges, Nominated AAT Members and Fed. Magistrates (from Telecommunications (Interception) Act 1979: Report for Year ending 30 June 2005, Table 29)
‘Balancing’ Rhetoric • ‘Balancing’ model in law enforcement context problematic • In telecommunications interception/access context, law enforcement/security has balanced away privacy interests
Conclusions • Observations are tentative • Changes in the regulatory context have substantially affected privacy • Mechanisms for further protection: • Public interest monitor • Destruction requirements • Notification • Rejection of ‘balancing’ models • Placing privacy at the centre of law reform