Because targets of ASIO surveillance are becoming increasingly security conscious, the intelligence agency requires more flexibility in how it hacks into computer systems, the Attorney-General's Department today told a parliamentary inquiry into national security law reform.
The Parliamentary Joint Committee on Intelligence and Security is currently conducting an inquiry into the first tranche of national security legislation introduced by Attorney-General George Brandis.
The National Security Legislation Amendment Bill (No. 1) 2014 includes a number of measures that would significantly boost spy agencies' powers to break into suspects' computer systems.
"Technological advancements have ... created some challenges in the execution of lawfully issued computer access warrants, especially where a person of security interest is security conscious, and we're increasingly seeing examples of that," Jamie Lowe, first assistant secretary for the department's national security law and policy division, told today's hearing.
"So security conscious people in fact take steps to ensure that ASIO cannot directly access their own computer."
Lowe was justifying measures in the bill that would allow ASIO to use a third party's computer or network to access a target's system.
"This proposed provision would enable ASIO to be authorised under a computer access warrant to use a third party computer or communication in transit for the limited and specific purpose of obtaining access to data relevant to the security matter being investigated and held in the target computer," states a written submission from the Attorney-General's Department to the inquiry.
"Under the amendment, a computer access warrant may specifically authorise ASIO to add, copy, delete or alter data on a third party computer or communication in transit where necessary to facilitate access to the data relevant to the security matter held in the target computer," the submission states.
"Content" on the third party computer could not be accessed without a telecommunications interception warrant, Lowe said.
"Effectively it's a means to an end, so making use of a third party computer to access the target computer," Lowe said.
The Attorney-General's Department has compared the measure to a B-party warrant, which allows security agencies to intercept a service likely to be used by someone who is not a target to communicate with a target.
However, the inspector-general of intelligence and security, Vivienne Thom, earlier told the inquiry that her reading of the legislation was that there would be a lower threshold than there is for obtaining B-party warrants.
"We observe that the proposed test is 'reasonable in all the circumstances' and it's not the same as the B-party warrant," Thom said. "My reading of that is a lower threshold."
The bill will also allow the "disruption" of target computers. "The current limitations in subsection 25(6) and 25A(5) [of the ASIO Act] that prevent any interference, interruption or obstruction or any loss or damage, can prevent ASIO from effectively executing a search warrant or a computer access warrant as they prevent a warrant from authorising even minor interferences or disruptions," the department's submission to the inquiry states.
"They also create uncertainty if it is not possible to determine whether an act may cause a disruption."
The proposed reforms "will allow ASIO to undertake acts authorised by computer access warrants that [are] likely to cause an 'immaterial' interference, interruption or obstruction to a communication in transit or the lawful use of a computer or is likely to cause any other immaterial loss or damage," Lowe said. Under certain circumstances, "material" interference would also be permitted.
"Material interference would be extremely rare and only occur when necessary. So it's not just a matter of convenience but would have to be necessary for the execution of the warrant. Immaterial interference could include, for example, using a minor amount of storage space or bandwidth as a result."
Measures in the bill that appear to target reporting of Edward Snowden-style disclosures were also raised at the hearing. Lowe said there were "misunderstandings" about provisions in the legislation covering "unauthorised disclosure of information," particularly in relation to the new 'Special Intelligence Operations' scheme.
"We're aware of suggestions that these offences could prevent or limit journalists, for example, from reporting on matters of national security or could preclude whistle blowers from making public interest disclosures about suspected instances of wrongdoing," Lowe said.
"Such concerns are based on a misunderstanding or a misinterpretation of how the provisions will operate."
"The offences do not target journalists. They apply broadly and their elements have been designed so that they will not apply to legitimate reporting of national security matters," Lowe said.
Provisions in schedule 6 of the legislation are "limited to persons who are in a specified form of relationship with the intelligence agency," such as contractors.
In relation to the disclosure of Special Intelligence Operations, "the prosecution must still prove that the person who communicated such information was at the time of the communication reckless as to the possibility that [that] information related to a special intelligence operation".
Lowe said there are "comparable" offences in the Crimes Act in relation to Australian Federal Police covert operations. "There has been no suggestion that the way that those provisions in the crimes act have operated have been a practical problem for journalists to date," she said.
A written submission by major media organisations to the inquiry said that journalists were "concerned that the Bill has been characterised as being similar to the controlled operations regime in Part IAB of the Crimes Act 1914".
"There are significant differences between the federal police controlled operation provisions and the new special intelligence operation provisions, particularly the significantly longer jail terms under the Bill, states the submission from AAP, ABC, APN, ASTRA, Bauer Media, Commercial Radio Australia, Fairfax Media, FreeTV, MEAA, News Corp Australia, SBS, and The West Australian
"The existence of controlled operation provisions in the Crimes Act does not automatically justify the imposition of similar provisions in the context of special intelligence operations.
"We are concerned that the Bill includes provisions that erode freedom of communication and freedom of the press."
Although the government has made clear that data retention is on its agenda, it was not included in this bill and will be part of a third tranche of national security-related legislation.
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