[Infowarrior] - More than ever, watch what you say

[Richard Forno]

More than ever, watch what you say

http://www.smh.com.au/news/opinion/more-than-ever-watch-what-you-say/2006/04
/02/1143916406540.html#

April 3, 2006

The Government should have listened to its members, write George Williams
and David Hume.
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Last week, Federal Parliament passed a law that allows the Government to
read private emails, text messages and other stored communications without
our knowledge. The power extends to innocent people, called B-parties, if
they have been unlucky enough to communicate with someone suspected of a
crime or of being a threat to national security.

The Government should sometimes be able to monitor the communications of
innocent people. This may be necessary to protect the wider community where
a suspect can only be tracked through another person. However, the law goes
beyond what can be justified and undermines our privacy more than is needed.

Under the Telecommunications (Interception) Amendment Act, the Government
will be able to access communications not only between the B-party and the
suspect, but also between the B-party and anyone else. If you have
unwittingly communicated with a suspect (and thereby become a B-party), the
Government may be able to monitor all your conversations with family
members, friends, work colleagues, your lawyer and your doctor.

The Government may be able to use the information even though the
information is not related to the original suspect. It also does not have to
tell you that it has been listening in. While there are some remedies if you
have been illegally monitored, these are pointless if you do not know you
have come under surveillance.

This is of even greater concern given how easy it is for ASIO to gain a
warrant. The gatekeeper is not an independent person such as a judge, but a
politician, the federal attorney-general. As long as ASIO has tried other
means of tracking a suspect, to gain a warrant it need only show that
intercepting the B-party's communications is "likely to assist" in obtaining
intelligence "related to security" - vague terms providing scope for the
misuse of the power.

A further issue is how the law distinguishes between stored and real-time
communications such as telephone conversations. It is easier to monitor
stored communications, apparently because they are seen as less private than
telephone conversations. However, now that telephone conversations often
occur in public on mobile phones, many people reserve their most personal
interactions for email and text messages. It is nonsensical that our
personal affairs are made less private because they are in an email rather
than said over the phone.

These problems have been compounded because the Government rushed the law
through Parliament without taking into account advice from its own ranks. A
Senate committee examining the bill unanimously found last Monday that the
powers were too extensive. It recommended strengthening protection against
misuse. The Government's own Blunn report on the area also suggested
stronger protection. Despite these warnings, the law does not incorporate
the recommended safeguards. Indeed, amendments made to the law over the past
week widened its reach.

The Government says that there is an urgent need for this law and that it
could not wait. This approach is wrong-headed. Like the sedition laws of
late last year, a law of this importance should not be enacted in haste in
the face of obvious problems. This is especially true when the law provides
for covert surveillance.

Protecting national security and investigating serious crime are important.
However, we must be careful that in developing a legal response we do not
lose sight of the freedoms we are trying to protect. We should ensure that
if the Government gains intrusive new powers over our privacy the powers are
balanced and go no further than is required.

This law goes too far. It contains more power to access our emails and text
messages than is needed and contains too few safeguards. Rather than rushing
the law through Parliament, the Government should have listened to the
report of its members. It should have come up with a law that better
protects the private communications of innocent people.

Professor George Williams is director and David Hume an intern at the
Gilbert + Tobin Centre of Public Law, UNSW.