The Assistance and Access Bill 2018 is the title given to a new piece of legislation that the Australian government has introduced. It will become law in about a month’s time when the consultation period is ended.
The essence of this new legislation is that the government, represented by the law enforcement agencies and other appropriate authorities, can seek access to encrypted information from technology companies like Google and Facebook for the process of solving crimes. Failure to comply will invite hefty monetary fines under this law.
Australian Government’s Justification for the Law
There are several reasons the Malcolm Turnbull-led federal government has adduced in explaining why this new law is critical to control crime.
Giving out some relevant statistics, Australia Minister for Cyber Security Angus Taylor has shared with the media that the department engaged in cracking cyber crimes or terrorism incidents has found that in most of the 200 serious offenses committed during a period of one year, the criminals had exploited the data encryption technology to communicate.
If companies like WhatsApp can permit access to the investigators solving these crimes, then there are better chances of preventing crimes from being committed and, where feasible, shut down the crime organizations involved in such activities.
How to Get Around the Encryption Issue
The challenge before the companies operating services like WhatsApp or similar is to protect the interests of their user community, while not seen to be violating the law of the land they operate in. Their services are so popular because they offer end-to-end encryption of data.
As you type out a message on your device, it gets encrypted from there and it is decrypted again at the recipient’s end.
The Australian authorities say that they respect the privacy perspective of the companies but want access to be provided to them only at the receivers’ end, at just the point where the decryption takes place before it is delivered.
These will be only in cases where they suspect a person could be involved in criminal activities and would want to gather evidence, before making the next move in their investigations.
The authorities believe that this way, there will be no violation of their own commitment to their users on data protection.
Under the law, the “larger public good” has always been held as more important than the individual’s right to privacy.
Where it impedes the legitimate investigative work, even the courts of law have taken a view in favor of law enforcement.
The Process to Obtain Data Won’t Be Easy
The Australian government would have surely studied similar statutes in other countries like the United States and the United Kingdom.
The government says it is putting in place the correct mechanism, so that the law is not misused in any manner.
According to the proposed Assistance Access Bill, there are three distinct levels created to ensuring the companies don’t feel they are being bulldozed for the data.
Firstly, there would be a request raised by the concerned law enforcement agency to the company, to voluntarily help with sharing the required data.
At the next level, there will be a Technical Assistance Notice issued to the company to help out the investigation team.
In the last level, a Technical Capability Notice is issued. This will be signed and issued only by the Attorney General.
Failure to comply will mean the company has to pay up to AUD 10 million (approximately $7.3 million USD).
Going back to the statistics the government has released, in the case of Facebook alone, the Australian government has issued some 6,977 requests for help but only in 67 percent of the cases, Facebook has responded with the desired assistance.
It is now being hoped that if and when the proposed law is enforced, the remaining requests will also be complied with.
It may be pertinent to draw attention to the fact that Australia has an existing law which enjoins telecommunications service providers to cooperate with investigative agencies and to share information when sought.
However, that law is limited to only the telecommunications service providers which are Australian companies.
The new law is meant to cover other companies like Facebook and WhatsApp and a host of other companies that collect and encrypt personal data.