encryption laws

It seems as if Peter Dutton, Christian Porter, Scott Morrison and Australia’s law enforcement and intelligence agencies — and quite a few News Corp journalists — want to make life much easier for hackers, foreign governments, terrorists and organised criminals and life harder for the rest of us.

It appears they want to do that by giving agencies the power to force tech companies to plant bureaucrat-designed malware onto computers and phones to intercept information before it is encrypted. This will send a raft of purpose-built viruses into the wild to be collected and sold by hackers as guaranteed, government-approved methods of defeating the encryption that we rely on for privacy, for commerce, for cybersecurity. And all for free. 

They want to do this because — in the most charitable interpretation — they have literally no understanding of the real world of cybersecurity, or they view it through a narrow prism of law enforcement, where any end justifies any means, usually in the most melodramatic way. And they want it done now. Well, at the moment they want it done now. The bill to create this power has been literally years in the making while the government tried to work out what it wanted to do. Now it has to be done yesterday.

The Coalition, agencies and News Corp have given Labor some grief over their lack of enthusiasm for rushing the encryption backdoor bill out of the Intelligence and Security Committee and into parliament to be rubber-stamped — soft on terrorism, etc, the usual, deeply ironic, abuse directed at anyone who thinks the relentless expansion of security and intelligence agency powers isn’t a good thing. But that shouldn’t be mistaken for evidence that Labor is prepared to play a proper role in relation to the powers of agencies.

As Crikey has recently reported, Labor has now cooled on its previous enthusiasm for introducing a proper system of parliamentary oversight of intelligence agencies, which will leave Australia as the only Five Eyes country without an effective parliamentary committee for overseeing the operations of our intelligence and counter-terrorism agencies (the NZ equivalent is also limited in its remit, but can order an independent inquiry into the operations of agencies).

The shift is all the more concerning given Labor’s willingness to consider some form of extension of anti-encryption powers, meaning there would be no meaningful oversight of agencies’ misuse of backdoors and malware. In the event that one of Australia’s intelligence agencies, such as the Australian Signals Directorate — which is not well regarded by other members of the Australian Intelligence Community — suffers the same fate as the CIA and the NSA and has its trove of malware stolen or leaked so that malicious online actors can use them to break encrypted systems, there would be no mechanism for any independent investigation of such a debacle.

Admittedly, Labor — belatedly, after the Greens and the minor parties — committed to a powerful national integrity commission, albeit short of a federal version of the NSW ICAC. It is unclear whether the body proposed by Labor would be able to inquire into corruption and crime within Australia’s intelligence agencies, or whether, as so often happens, “national security” would be invoked to curb scrutiny and accountability. But, again, it is hard to have any confidence in Labor. The greatest corruption scandal in recent Australian history remains unresolved, and Labor has played a key part in its cover-up.

Alexander Downer ordered ASIS to illegally bug the cabinet of Timor Leste to benefit Woodside, a company for which both he and the then-Secretary of DFAT later took paid positions. The Gillard government tried to cover up this crime when Timor-Leste — privately — tried to seek redress, with then-Attorney-General Mark Dreyfus ordering the bugging of Witness K and his lawyer Bernard Collaery.

“Australian politicians, alone now among the enlightened democracies in Western Europe, the United States and Britain, legislate powers to intelligence agencies without reserving the slightest right to supervise operational use of such potentially intrusive powers,” Collaery said this morning. “Labor, by omission and lack of courage, is about to give unaccountable persons we don’t know further carte blanche powers over our freedoms. This time around, when the inevitable excesses come to light, hopefully before an Integrity Commission, we may say that institutionally Federal Labor was complicit, not just ‘unaware’ as Mr Dreyfus has been explaining away his role or lack thereof in 2013.”

Until Labor accounts for its role in the cover-up of the bugging of Timor-Leste, its stance on an integrity commission is hollow and it cannot be trusted. Nor can it be trusted to prevent the abuse of the ever greater powers of intelligence agencies.