The Australian Commission for Law Enforcement Integrity (ACLEI) is supportive of the nation’s pending Telecommunications Legislation Amendment (International Production Orders) Bill 2020, saying the new powers contained within would assist with international cooperation on law enforcement prosecution.
In a submission [PDF] to the Parliamentary Joint Committee on Intelligence and Security (PJCIS) and its review of the Bill, ACLEI said while it doesn’t really use the current laws that facilitate cross-jurisdictional information-sharing, it would use the new one.
The Bill is intended to amend the Telecommunications (Interception and Access) Act 1979 (TIA Act) to create a framework for Australian agencies to gain access to stored telecommunications data from foreign designated communication providers in countries that have an agreement with Australia, and vice versa. It would also remove the ability for nominated Administrative Appeals Tribunal members to issue certain warrants.
The Bill is a precondition for Australia to obtain a proposed bilateral agreement with the United States in order to implement the US Clarifying Lawful Overseas Use of Data Act (the CLOUD Act).
Under the TIA Act, ACLEI can currently intercept telecommunications and access stored communications and telecommunications data.
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In situations where the communications and telecommunications data is stored overseas with foreign providers, however, ACLEI cannot use the powers under the TIA Act to access it. Instead, it has to use the mutual legal assistance regime under the Criminal Matters Act 1987 to use such powers.
“Our experience using this mutual legal assistance regime for accessing this information from foreign communications providers is that it is time consuming and slow,” ACLEI wrote. “Significant delays may occur in the execution of requests at multiple points; in the application, transmission, and execution of a mutual assistance request. Such delays might ultimately slow down and hinder the investigation.”
ACLEI said that for these reasons, it has not sought information of this kind with regularity in the past.
“That is because, notwithstanding the increasing relevance of such information in the digital age where geographic boundaries have less significance, the effort involved in pursuing the information and the time it takes for it to be provided diminishes its utility,” it said.
The integrity body said it is likely that it would pursue information of this kind with greater regularity following the Bill’s passage.
“In particular, ACLEI anticipates it would seek information from such designated communications providers as Facebook, Hotmail, WhatsApp, and Google,” it explained.
“That is because the regime proposed would simplify and streamline access to this information. This type of information could prove critical to the success of corruption investigations and criminal prosecutions resulting from those investigations.”
While the Australian Privacy Foundation, in its submission to the PJCIS, poked holes in the Bill’s guidance and safeguards, ACLEI has taken a different perspective. The ACLEI said it was “comforted” by the “clear guidance and safeguards the Bill provides in terms of accessing and handling this information”.
“ACLEI believes that the Bill will be effective in achieving the aims of facilitating access to valuable data for the use in law enforcement investigations while ensuring safeguards are in place, in a manner consistent with the domestic regime in the TIA Act,” it said.
“ACLEI believes that the regime would become a valuable tool in investigating corruption in Commonwealth law enforcement agencies.”