Australia

Checks and balances needed for new police surveillance powers

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The Australian Federal Police has had a big win helping the FBI in the battle against organised crime through Operation Trojan Shield.

Following the lead of US colleagues, the AFP used an informer to convince organised criminals to use smartphones installed with an app called An0m in the belief that they were untraceable and encrypted.

In fact, the FBI had tampered with the app so it could listen in. The devices, including about 50 sold in Australia, exposed conversations involving Italian organised crime, Asian triads, biker gangs and transnational drug syndicates.

The operation, which ended this week, has already resulted in charges against 224 offenders in Australia. Police say they disrupted 21 threats to kill and seized 104 firearms and more than $45 million in assets and cash.

Prime Minister Scott Morrison, who spoke about the operation at a press conference on Monday, said the successful use of a secret bugging device showed that police needed more powers to hack into criminal networks.

He called on the Opposition to pass two laws now under review in Parliament which would give the AFP more power to hack into the so-called dark web and run background checks at ports and airports.

Certainly, the Herald believes police should have the ability to access the communications of serious criminals. But it is far too early to say what policy lessons can be drawn from Operation Trojan Shield. The selective briefing of the operation to uncritical media outlets suggest political motivations could be at play.

The AFP say that it made use of the Telecommunications and Other Legislation Amendment Act from 2018, which controversially gave police the power to force big technology companies to unlock encrypted messaging apps such as Signal and Telegram.

Tech firms have warned, however, that the world-first law comes at a heavy cost because it forces them to install “back doors” into apps. Criminals could exploit this vulnerability to snoop on private conversations or commercial secrets.

It is not clear how important the special powers were to the Trojan Shield operation. The FBI seems to have managed without them. The AFP should, when the time is right, make this information available.

But given the extraordinarily intrusive surveillance which is now possible, legislation must be crafted to protect basic rights to privacy and the secrecy of commercial communication.

Some would argue that the right balance has not been struck. Independent National Security Legislation Monitor James Renwick said, after a review last year, security agencies should have to go before a judge for permission to use the 2018 law to hack encrypted messaging apps.

The Herald also reminds AFP Commissioner Reece Kershaw that the sharing of information should – in certain circumstances – be a two-way street. Shortly after being appointed in late 2019, Mr Kershaw, who was still dealing with the fallout of AFP raids against journalists who broke important stories, spoke about a more transparent agency that would seek to fill information voids in the social media age.

“If it’s going to get out, we might as well be the ones actually saying it,” Mr Kershaw said. He added this included a commitment to release information previously only accessible by freedom-of-information requests, which have become increasingly entangled in delays and exorbitant costs. The Herald remains unconvinced given a FOI request about the AFP’s now-concluded investigation into Queensland MP George Christensen – a clear matter of public interest – has dragged on for two years without a positive result.

This is a difficult area. The new legislation to cover the special conditions in the dark web and other private communications networks can certainly play a role in fighting crime and terrorism. But basic civil liberties must be safeguarded too.

Note from the Editor

The Herald editor Lisa Davies writes a weekly newsletter exclusively for subscribers. To have it delivered to your inbox, please sign up here.

Since the Herald was first published in 1831, the editorial team has believed it important to express a considered view on the issues of the day for readers, always putting the public interest first.

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