The Australian government is considering legislation that would endanger source protection, confidential reporting processes, and the privacy of everyone in an ill-conceived effort to grant law enforcement easier access to electronic communications.
Freedom of the Press Foundation has joined a group of digital rights organizations in calling for the Australian government to refrain from any effort to weaken access to encrypted communication services. “We strongly urge the government to commit to not only supporting, but investing in the development and use of encryption and other security tools and technologies that protect users and systems,” the open letter to Australian officials states.
While it has not yet introduced such legislation, the government has reiterated its intention of doing so consistently over the past year. In July 2017, Australian Prime Minister Turnbull and Attorney General George Brandis held a press conference at which they initially stated their intention to force communications companies to comply with law enforcement decryption efforts. Months later, the foreign minister said legislation intending to work with communication providers to stop terrorism was imminent.
It’s unclear what this legislation will look like, but communication companies or device makers could face significant government fines if they refuse to assist law enforcement with accessing users’ data. This could apply not only to Australian telecommunications companies like Telstra and Optus, but also to huge, internationally-based tech companies like Facebook and Apple.
If companies have the ability to decrypt their users’ data and hold their private encryption keys, those companies could be forced to provide confidential communications anytime the government deems access necessary. Taylor has claimed there will be no requirements for companies to build “backdoors” into their products for law enforcement, but the alternative to undermining encryption itself is to target physical devices.
This is one of the fears of Nathan White, Senior Legislative Manager at Access Now. He is concerned that rather than compelling WhatsApp or Gmail to provide access to encrypted content, the legislation will force device manufacturers to push targeted malware to the devices of people who are the subject of investigations.
Regular software updates are critical to the security and privacy, because they often fix vulnerabilities and introduce new protections. Laws that could force a company like Apple to target a user’s device with malware would eradicate trust between device makers and their users in software updates. The government could hypothetically demand malware to be sent to the devices of journalists, sources, or activists, and use confidential communications acquired through targeted malware to prosecute or investigative them.
Australian Attorney General George Brandis called encryption “potentially the greatest degradation of intelligence and law enforcement capability” in a lifetime. He has indicated that the new laws would be akin to the United Kingdom’s Investigatory Powers Act, and would grant the government the ability to force companies to comply with investigations.
It’s a chilling comparison to make. The Investigatory Powers Act is one of the world’s most Orwellian and sweeping surveillance laws, which authorizes the blanket collection, monitoring, retention of citizens’ communications and online activity.
Australia is also part of the powerful “Five Eyes” intelligence alliance that includes the United Kingdom, United States, New Zealand, and France. The adoption of laws that use broad “terrorism” claims to justify weakening of encryption or targeting of devices could open the door not only to similar legislation in other countries and even normalize international sharing of decrypted sensitive data. (Australia is also hosting a Five Eyes meeting in August, where these legislative efforts could be discussed.)
It’s unclear what this legislation will look like, or when it will be introduced, but the government’s efforts will be met with widespread opposition when it does so. Any laws that threaten software updates or encryption would threaten the privacy of everyone in Australia, and set a disturbing precedent for governments and intelligence agencies around the world.