The Australia Vs. Terror Thread

[Mike]

Recently, Techdirt has been following the Australian government's moves to bring in intrusive new surveillance powers. The "justification" for all this is, of course, "terrorism", which has become the lazy politician's excuse for everything, and has already led to episodes of ridiculous over-reaction in Australia. So it hardly comes as a surprise that the worsening situation in the Middle East has brought forth even more of the same, in the form of the "Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014" (pdf). An accompanying Explanatory Memorandum (pdf) gives a good summary of its rationale:

1. Australia faces a serious and ongoing terrorist threat. The escalating terrorist situation in Iraq and Syria poses an increasing threat to the security of all Australians both here and overseas. Existing legislation does not adequately address the domestic security threats posed by the return of Australians who have participated in foreign conflicts or undertaken training with extremist groups overseas ('foreign fighters').

2. This Bill provides a suite of measures which are specifically designed to strengthen and improve Australia’s counter-terrorism legislative framework to respond to the foreign fighter threat. It will provide additional powers for security agencies to deal with the threat of terrorism within Australia and that posed by Australians who participate in terrorist activities overseas. It will further counter terrorism through improving border security measures and by cancelling welfare payments for persons involved in terrorism.

The Bill is a huge collection of amendments to dozens of existing laws, including those that regulate police search powers. Here's CNET's description of a major change in this field:

The Bill introduces the concept of a "delayed notification search warrant" -- often referred to in the United States as a 'no-knock warrant' -- which would allow Australian Federal Police to search premises without prior warning and "without having to produce the warrant at the time of entry and search".

The Explanatory Memorandum details an important new capability relating to computers:

As computers and electronic devices are becoming increasingly interconnected, files physically held on one computer are often accessible from another computer. Accordingly, it is critical that law enforcement officers executing a search warrant are able to search not only material on computers located on the search premises but also material accessible from those computers but located elsewhere. This provision would enable the tracing of a suspect's internet activity and viewing of material accessed by the suspect through the use of that equipment.

That seems rather broad; an article in the Sydney Morning Herald reveals just how broad:

On Wednesday afternoon, [Australian Attorney-General] Senator Brandis confirmed that under the legislation, ASIO [Australia's spy agency] would be able to use just one warrant to access numerous devices on a network.

The warrant would be issued by the director-general of ASIO or his deputy.

"There is no arbitrary or artificial limit on the number of devices," Senator Brandis told the senate.

This means that the entire Australian internet could be monitored by just one warrant if ASIO wanted to do so, according to experts and digital rights advocates including the Australian Lawyers Alliance, journalist union the Media Entertainment and Arts Alliance and Electronic Frontiers Australia.

Whether or not new powers are needed to address the problem of "foreign fighters" returning home, clearly that ability to monitor the entire Australian Internet with just one warrant is completely disproportionate, an assault on citizens' privacy, and ripe for abuse by the authorities. It underlines once again that abrogating basic freedoms in order to "fight terrorism" simply means the terrorists have already won.

Originally Published: Wed, 24 Sep 2014 20:31:05 GMT
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[Mike]

Yesterday we told you about just one of the troubling aspects of a proposed "anti-terror" law in Australia, in that under a single warrant, ASIO, the intelligence gathering organization, could effectively monitor the entire internet. During some Parliamentary discussions on this, Senator Scott Ludlam tried to add an amendment limiting the number of computers that could be monitored under a single warrant. Brandis' "contribution" to the debate on this was to accuse Ludlam of being a "liar" for claiming that the law would allow the tapping of the entire internet under a single warrant and then... refusing any further explanation. The exchange is really quite incredible. Ludlam says he'd be happy if, in fact, his understanding of their previous conversation was in error, and thus wished for clarification. Brandis responds:

What ASIO would be empowered to do is that which is authorized by the warrant, which is, in turn, governed by the terms of the Act.

Holy tautology Batman! Ludlam appears reasonably sarcastically frustrated in return:

Thank you for your opaque and utterly unhelpful response.

He asks further specific questions about what the law would cover and Brandis repeats: "I don't have anything to add to my previous answer." It's basically a giant "fuck you" to anyone wanting to make sure that the law isn't overly broad and doesn't allow spying on the entire internet. Remember, Brandis claims that was a lie, but refuses to clarify beyond the "utterly unhelpful" statement he made.

Unfortunately, despite all of that insanity, the bill still passed, without Ludlam's amendment, meaning that this is likely to be the law in Australia soon. And, of course, there are other troubling aspects to the law beyond just being able to monitor everything on a single warrant. As many people have pointed out, there's a free-speech destroying provision that would allow for 10 years of jail time for whistleblowers and anyone (including journalists) who repeat what the whistleblowers revealed.

Anyone — including journalists, whistleblowers, bloggers and others — who "recklessly" discloses "information ... [that] relates to a special intelligence operation" faces up to 10 years' jail.

In short, Australia is guaranteeing that not only will they not have their own Edward Snowden but they won't have their own Glenn Greenwald, either. Combine that with the massive new powers to spy on everyone with a single warrant, and Australia just massively expanded the surveillance state, and put a gag order on anyone who wants to expose its abuses.

Originally Published: Thu, 25 Sep 2014 18:21:21 GMT
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[Mike]

As we reported a few weeks ago, Australia has passed a dreadful "anti-terror" law that not only allows the authorities to monitor the entire Internet in that country with a single warrant, but also threatens 10 years of jail time for anyone who "recklessly" discloses information that relates to a "special intelligence operation." But what exactly will that mean in practice? Elizabeth Oshea, writing in the Overland journal, has put together a great article fleshing things out. Here's her introduction:

The parliament has passed legislation that permits the Attorney General to authorise certain activities of ASIO and affiliates as 'special intelligence operations'. We can only assume that ASIO will seek such authorisation when its operatives plan to break the criminal or civil law -- the whole point of authorising an operation as a special intelligence operation is that participants will be immune from the consequences of their unlawfulness. It will also be a criminal act to disclose information about these operations.

So the Australian government can designate activities of its spy services as "special intelligence operations," which may well be illegal, and then it becomes a criminal act to disclose anything about those operations, however bad they are. Indeed, that even seems to include operations that result in death, as Oshea explains in one of her examples of what could happen under the new law:

A botched operation is conducted that results in the death of an innocent bystander (credit this suggestion to the former Independent National Security Legislation Monitor). Note that if a person with three children dies as a result of a failure to take reasonable care, her family will be unable to make a claim for the cost of raising her dependents. If she is maimed but not killed, she will be unable to make a claim for the cost of her medical care, lost earnings, pain and suffering, and the cost of raising her dependents.

That's a hypothetical case, but Oshea also lists a number of incidents that have already occurred, but which are likely to be covered by the new law -- and would thus become impossible to write about. Here are a couple of them, with links to the real-life cases:

Agents and officers raid a couple in their home and hold them captive at gunpoint for an hour, only leaving when they discovered they were at the wrong address. The couple will have no entitlement to compensation for any property or personal damage arising from imprisonment, trespass and assault.

Agents kidnap and falsely imprison a young medical student. They attempt to coerce answers from him, making making threats that go beyond what is permitted by the relevant search warrant.

There's more of the same, listing previously-reported incidents that would probably be censored in future. The post also explores legislative proposals that are equally disturbing:

The parliament is considering laws that will punish people with life imprisonment for a range of new offences associated with 'subverting society' (which is a component of the new definition of 'engaging in hostile activities'). The law contains a defence of advocacy, protest, dissent or industrial action, but it is very unclear how these would be applied.

Here's the kind of thing that might get you life imprisonment in Australia in the future:

Leaking materials taken from government information systems that demonstrate serious wrongdoing (as per Manning or Snowden).

Organising and engaging in denial of service attacks – the online equivalent of a sit in – against government websites, such as that of the President, Prime Minister, the Ministry of Industry, the Ministry of Foreign Affairs, and the Stock Exchange.

There's also an explanation of what data retention might mean for the public. All in all, it's a valuable guide to some of the seriously bad stuff that Australia is doing. Let's just hope that other countries don't take it as a blueprint.

Originally Published: Mon, 13 Oct 2014 16:27:15 GMT
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