Presentation on theme: "Simon Bronitt and James Stellios ANU College of Law, The Australian National University Regulating Telecommunications Interception and Access: A Seachange."— Presentation transcript:
Simon Bronitt and James Stellios ANU College of Law, The Australian National University Regulating Telecommunications Interception and Access: A Seachange in Surveillance Laws
Key Issues and Questions The 2006 Act represents a landmark reform to the telecommunications interception regime in Australia. New power to access stored communications provide state with further tools for security and law enforcement purposes. Legal & Policy Issues What is the impact of the new legislative scheme? Are existing safeguards effective? Has privacy have been ‘balanced’ away in favour of providing state with enhanced surveillance tools? Is a balancing approach wrong?
Interception Regime Trends since 1979: Normalization of Extraordinary Powers The Emergence of Regulatory Surveillance: Beyond Serious Crime From Prohibition to Permission From Intelligence-Gathering to Evidence-Gathering From Federal to National Surveillance From Judicial to Administrative Control
History - Trends AGENCYRelevant StatisticsApplications for Part 2.5 (Part VI) Warrants 93/9495/9601/0202/0305/06 AFPMade Refused/Withdrawn Issued NSW Crime Commission Made Refused/Withdrawn Issued NSW PoliceMade Refused/Withdrawn Issued TotalMade Refused/Withdrawn Issued
The Surveillance Seachange? Seachange … a ‘noticeable and unexpected transformation’ (Oxford English Dictionary) TI versus TIA Surveillance ‘Live’ Interception versus access to stored data Surveillance Warrant: The New Form of Search Warrant More or Less Privacy intrusive? SMS & Deserving Less Protection (or Y-Gen Prejudice)? Debased Process of Law Reform
Human Rights and Remedies ‘Front End’ versus ‘Back End’ Accountability Demise of Class 1 and Class 2 Warrants Citizen Suits? Effective or Illusory remedies? Privacy: Paramount or Subordinate?
Telecommunications Interception Amendments (TIA) New security/law enforcement tools: Device specific warrants B-Party warrants Regulation of stored communications
The Warrant System Two ways in which privacy is protected: Privacy as a factor in issuing process Use of judges in issuing process Reality does not match theory: Privacy likely to be outweighed by law enforcement/security purposes Judges have a limited role in process
Warrants Issued Number of Warrants Issued in by Fed. Court Judges, Family Court Judges, Nominated AAT Members and Fed. Magistrates (from Telecommunications (Interception) Act 1979: Report for Year ending 30 June 2005, Table 29) IssuerNumber issuing warrants Total Warrants issued Family Court Judges19179 Federal Court Judges213 Federal Magistrates260 Nominated AAT Members282691
‘Balancing’ Rhetoric ‘Balancing’ model in law enforcement context problematic In telecommunications interception/access context, law enforcement/security has balanced away privacy interests
Conclusions Observations are tentative Changes in the regulatory context have substantially affected privacy Mechanisms for further protection: Public interest monitor Destruction requirements Notification Rejection of ‘balancing’ models Placing privacy at the centre of law reform