Encryption is about to become the most important national security debate

More than virtually any other politician, when Anthony Byrne speaks on national security, it pays to listen. The former chair, now deputy chair, of Parliament’s Joint Committee on Intelligence and Security is plugged into not merely Australian security institutions — with whom he has an occasionally fractious relationship — but key US and UK ones as well.

It was Byrne who, in 2014, warned that the issue of data retention should be debated sooner rather than later, lest the opportunity for rational debate be swept aside in the wake of a terror incident. He couldn’t have known how right he would turn out to be — the attack on police officers by ISIS-sympathiser Numan Haider in September that year occurred in his own electorate; the government announced its data retention proposal a month later. Before the bill would be debated and passed, Man Haron Monis would conduct his siege, and counterterrorist raids on would-be jihadis would sweep Sydney.

Now Byrne has made a similar call, and what he said last night in Parliament should worry local digital activists and tech companies. Speaking in Federation Chamber yesterday, Byrne said:

“I was in the United States after the San Bernardino massacre. I was there, in my capacity as deputy chair of the intelligence and security committee, to meet intelligence agencies — the CIA, the FBI — and also the US Department of State and other people. The great issue of concern being raised by those agencies was that Apple would not unlock for the FBI the iPhone that was used by the perpetrators of that terrorist act, the two individuals … the question is: when do private companies dictate how we run national security, whether in this country, in the United States of America or in the United Kingdom, because they are similarly minded jurisdictions?”

However, Byrne isn’t proposing “further sweeping national security reforms that compel companies to do things that they might not want to do”.

“I think this is one of the issues that governments — come what may and in some, way shape or form — are going to have to confront: where do we draw a limit on the role of the state? … in a functioning Western democracy, where does the state intersect with the role of imposing, perhaps, legislation on a corporation that compels it to provide information that might be essential for the safeguarding of national security?”

Byrne wants to avoid the situation where — as the FBI did — governments turn to third parties to defeat encryption. “That does not mean, necessarily, building backdoors,” he said. “But it does mean that, when we really do need to access the technologies, the data streams and the devices, we can do that in order to keep our community safe.”

[Encryption wars heat up as governments fight for less security]

Security agencies are already looking at this issue — the Prime Minister asked them to back at the end of 2015 after San Bernardino and the stand-off with Apple. But there are no easy answers for governments. Creating backdoors simply means criminals, terrorists and enemy states like Russia will get access to them — that’s exactly what has happened to both CIA and NSA backdoors and hacking tools that were stolen from those agencies and released into the digital wild (in fact, Byrne says the Americans assured him when he was last there that there’d be no more major intelligence leaks — only for both the CIA and NSA hacking tools leaks to subsequently emerge). And terrorist groups like al-Qaeda have developed their own bespoke encryption software rather than rely on platforms developed by Western companies anyway. Backdoors and anti-encryption tools simply make us all less safe.

But Byrne went on to make a more important point, on the most important structural issue in Australia national security policy currently. Byrne, along with Labor’s John Faulkner before he left politics, has been a tireless advocate of an expansion of the remit of the intelligence and security committee to more closely resemble the intelligence committees that oversee the UK and US agencies. Despite a gradual increase in the committee’s remit under the leadership of then-chair Dan Tehan and Byrne under the Abbott government, it remains one of the most absurdly hamstrung committees in Parliament — it can’t even initiate its own inquiries, but must wait for the government of the day to ask it to conduct a review.

But without better oversight of security agencies, Byrne says, the public won’t trust the government when (as is inevitable) it expands the powers of those agencies. “If we do not increase the oversight, we will not have the support of the public,” he said bluntly.

[Can the FBI hack your iPhone?]

Malcolm Turnbull launched an inquiry — by handpicked outsiders — into our intelligence agencies back in November, which is supposed to address the oversight issue. But no inquiry is needed to recognise that a parliamentary committee, which is effectively at the beck and call of the executive, logically cannot provide proper oversight of agencies — or be seen to do so. Nor does it require a major review to know that agencies and security bureaucrats hate the idea of a more powerful committee — especially the Attorney-General’s Department, whom Byrne has serially monstered in recent years for its repeated failings and disrespect.

Unfortunately, Byrne is playing a lone hand on this. The opposition, which is anxious not to allow any daylight between itself and the Coalition on national security, is notionally committed to a bill left by Faulkner that would overhaul the role and powers of the committee, but hasn’t pressed the issue. But it remains a key weakness in Australia’s national security — our agencies need much greater scrutiny than they’re getting. Perhaps it’s time for the Greens should reintroduce Faulkner’s bill in the Senate …