Surveillance Bill amendments reassure telcos

Law not intended to justify hacking

Re-examination of the text of the Search and Surveillance Bill by Parliament's Justice and Electoral Select Committee has brought a reassurance to telcos that agencies investigating a suspected illegal act will not have the power to ask them to produce telephone call data that they would not gather in the normal course of business.

Telecom, in particular, expressed concern that the bill risked blurring the line between search and surveillance by empowering investigators to request call content information (conversation or data transmitted during a call) on an ongoing basis as part of a "production order", which is a search provision.

This, Telecom feared, may amount effectively to surveillance, which is supposed to be under stricter controls than search. There was even a reference in this section to telcos' "interception capability". Telecom suggested this wording may require it to set up new interception equipment costing millions of dollars and, moreover that separate equipment would be required for the more than 20 agencies who would gain this power under the new legislation.

"The reference to 'interception capability' should be removed, says the Select Committee in an interim report on the bill, "as the production order regime covers stored [Committee's emphasis] documents and information, not information that is intercepted."

However, a production order can remain in force for a period and still require surrender of information that was not in the telco's possession at the time the order was first served. In this respect, the order still has an effect broader than a one-time search warrant.

The interim report arises out of an unusual suggested rewording of the bill to make the intent and effect of some of its provisions clearer. This was a response to widespread public concern that the proposed law may give too much power to police and a range of government and quasi-government agencies. Many submitters also suggested the bill was too complex and confusingly expressed for the subjects of search and surveillance to be sure the measures exacted against them would be legal.

People who wrote submissions on the original text of the bill have been invited to respond again to the suggested changes -- a rare second opportunity to comment on proposed legislation at the committee stage.

The report also endeavours to give reassurance to people who fear agencies could hack into suspects' computer systems, effectively conducting a search warrant on all contents of the computer, without the subject being aware of it.

The report says the law is not intended to justify hacking. However, its following sentence might be seen as only compounding confusion "The bill only allows remote access from the place being searched, unless [sic] there is no physical search location that may be searched to access that data," it says.

The text in the bill referring to this has been amended by deleting the provision empowering remote access to another computer "accessible from" a computer at the search premises. The word "computer" in these provisions has been replaced by "computer system", which the Crimes Act already defines as an interconnected set of computers and data storage facilities.

The section of the report referring to hacking emphasises that the legislation will only authorise access that can be done "legally"; however, this qualification does not occur in the text of the bill itself.

In the section covering search warrants for such purposes, the phrase referring to a physical location "that can be searched" has been deleted, leaving it referring curiously to "a thing such as an internet data storage facility that is not situated at a physical location."

Among other technology-related provisions, the committee suggests the power to install audio and video surveillance equipment on private premises be limited to cases where an offence punishable by seven years imprisonment or more is suspected. Previously, this power was given in respect of any offence with an imprisonment penalty, no matter how short.

Disclosure: Stephen Bell wrote a note to the Clerk of the Select Committee after the original submission deadline, pointing out legal sources has told him the remote computer search provision was not clear (Computerworld, October 27, 2009). This note is listed as a submission (the committee evaluates it as "neutral" - neither for nor against the bill's provisions).

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