Accessing Telecommunications Data for National Security and Law Enforcement Purposes

DOI10.22145/flr.37.3.3
AuthorSharon Rodrick
Publication Date01 September 2009
SubjectArticle
ACCESSING TELECOMMUNICATIONS DATA FOR
NATIONAL SECURITY AND LAW ENFORCEMENT
PURPOSES
Sharon Rodrick*
INTRODUCTION
Technological developments, particularly the advent of the Internet and the mobile
phone, have spawned a vast increase in the volume, type and availability of
telecommunications information.1 Mobile phones are now capable of sending and
receiving SMS text messages and emails, accessing and downloading material from the
Internet, taking photographs, streaming video and audio content and providing GPS
navigation. National security and law enforcement agencies frequently wish to access
telecommunications information for national security and law enforcement purposes.
The desired information may be 'telecommunications content' — that is, the actual
substance of a communication — or 'telecommunications data' — meaning information
about a communication but not the substance of it.
Access to telecommunications information by national security and law
enforcement agencies is part of a wider debate about what constitutes an appropriate
response to the threat of terrorism and to the use by criminals of increasingly
sophisticated methods. Governments in Western democracies have tended to react by
conferring on their national security and law enforcement agencies significantly
increased powers to obtain information about individuals, including increased access
to telecommunications information. Such governments have acted on the premise that
citizens expect their government to keep them safe, and to equip itself with the power
to do so.2 However, increased state power is often arrogated at the expense of human
rights and freedoms, particularly in Australia, which lacks a Bill of Rights to 'balance
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* BA, LLB(Hons)(Melb), LLM (Melb), Senior Lecturer in Law, Faculty of Law, Monash
University. My sincere thanks go to Dr David Lindsay for his critical comments on an
earlier draft of this article, and also to the anonymous referee.
1 New South Wales Council for Civil Liberties, Submission to the Senate Standing Committee on
Legal and Constitutional Affairs Re Inquiry into the Telecommunications (Interception and Access)
Amendment Bill 2007, 11 July 2007.
2 Niloufer Selvadurai, Peter Gillies and Md Rizwanul Islam, 'Maintaining an Effective
Legislative Framework for Telecommunication Interception in Australia' (2009) 33 Criminal
Law Journal 34, 44.
376 Federal Law Review Volume 37
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the ledger' between the two.3 In the context of telecommunications, the freedom most
likely to be compromised by increased powers of access is individual privacy.
It is not surprising, therefore, that the debate regarding the extent to which national
security and law enforcement agencies should be able to access telecommunications
information invariably focuses on the tension between the need to protect the privacy
of individuals who use the telecommunications system — particularly those who are
suspected of planning or committing crimes or acts of terrorism — and the need to
protect national security and facilitate law enforcement. As a matter of principle, it is
fairly uncontentious that privacy and national security/law enforcement each have
legitimate claims to recognition and protection, and that there are circumstances in
which it is justifiable to encroach on the former to protect and promote the latter. The
discussion inevitably centres on how the law can best protect society from crime and
terrorism while continuing to preserve the rights and freedoms of individuals, or, if
both cannot be achieved in adequate measure, which should be given primacy.
Access to telecommunications content and data is primarily governed by the
Telecommunications (Interception and Access) Act 1979 (Cth) (the 'Interception Act') and, to
a lesser extent, by the Telecommunications Act 1997 (Cth) (the 'Telecommunications Act').
In deference to the fact that technological advances have made it possible to use the
telecommunications system to communicate in a multiplicity of ways, the Interception
Act creates three broad access regimes. The first pertains to interception of real time
communications, primarily voice communications.4 There is a general prohibition on
intercepting live communications — that is, communications as they are passing over a
telecommunications system5 — in the interests of protecting the privacy of the persons
who make and receive such communications.6 However, the prohibition is qualified
by a number of exceptions. The primary exceptions allow for warrants to be issued to
the Australian Security Intelligence Organisation ('ASIO' or the 'Organisation') and to
certain State and federal law enforcement agencies which permit them to intercept
telecommunications for national security and law enforcement purposes.7 Warrants
are issued to ASIO by the Federal Attorney-General,8 and to law enforcement agencies
by an 'eligible judge' – namely, a judge of a court created by the Commonwealth
Parliament who has consented to being nominated and who has been declared by the
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3 Simon Bronitt and James Stellios, 'Tel ecommunications Interception in Australia: Recent
Trends and Regulatory Prospects' (2005) 29 Telecommunications Policy 875, 887.
4 Telecommunications (Interception and Access) Act 1979 (Cth) ch 2.
5 This phrase has been judicially considered in the context of telephone tapping in a number
of cases. See, eg, Miller v Miller (1978) 141 CLR 269; R v Curran and Torney [1983] 2 VR 133;
R v Oliver (1984) 57 ALR 543; Edelsten v Investigating Committee of New South Wales (1986) 7
NSWLR 222.
6 Telecommunications (Interception and Access) Act 1979 (Cth) s 7.
7 Telecommunications (Interception and Access) Act 1979 (Cth) pts 2–2, 2–5.
8 Telecommunications (Interception and Access) Act 1979 (Cth) ss 9, 9A. Provision is made for
warrants to be issued by the Director-General of Security in emergencies: s 10.
2009 Accessing Telecommunications Data for National Security and Law Enforcement 377
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Minister to be an eligible judge9 — or by nominated members of the Administrative
Appeals Tribunal ('AAT').10
The second regime regulates access to stored communications.11 These are
communications that have completed their passage over the telecommunications
system, that are held on equipment that is operated and possessed by a carrier, and
that cannot be accessed on that equipment by a person who is not a party to the
communication without the assistance of an employee of the carrier.12 In short, the
regime applies to communications that are temporarily stored by the carrier or carriage
service provider ('CSP') at some point during the course of their transmission over the
telecommunications system before being received by the intended recipient. They
include emails, SMS and voice mail messages.13 The stored communications regime
only applies where communications are accessed from the telecommunications service
provider; it does not govern access to communications that are stored on equipment in
the possession of the intended recipient.14 Again, in the interests of privacy, there is a
general prohibition on accessing stored communications,15 qualified by another set of
exceptions, the most significant ones being the provision for warrants to be issued to
ASIO and specified enforcement agencies allowing them to access stored
communications for national security and law enforcement purposes.16 ASIO can
access stored communications using its existing interception warrants.17 Enforcement
agencies, however, must obtain a stored communications warrant. These can be issued
by an 'issuing authority', being a consenting judge of a court created by the
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9 Telecommunications (Interception and Access) Act 1979 (Cth) s 6D. Eligible judges can be
drawn from the Federal Court of Australia, the Family Court of Australia or the Federal
Magistrates Court.
10 Telecommunications (Interception and Access) Act 1979 (Cth) ss 46, 46A. The Deputy President,
full time and certain part time senior members, and members of the AAT can be nominated
by the Minister to issue warrants: Telecommunications (Interception and Access) Act 1979 (Cth)
s 6DA. To be eligible for nomination, part-time senior members and members of the AAT
must have been enrolled as a legal practitioner of the High Court, the Federal Court or a
State or Territory Supreme Court for no less than five years.
11 Telecommunications (Interception and Access) Act 1979 (Cth) ch 3.
12 Telecommunications (Interception and Access) Act 1979 (Cth) s 5.
13 See Tonia Starey, 'Getting the Message: A Comparative Analysis of Laws Regulating Law
Enforcement Agencies' Access to Stored Communications in Australia and the United
States' (2005) 10 Media and Arts Law Review 23, 24–26. It appears that Instant Messaging
systems fall outside the stored communications regime: Selvadurai, Gillies and Islam,
above n 2, 42. See also fn 90.
14 Explanatory Memorandum, Telecommunications (Interception) Amendment Bill 2006 (Cth)
4. Access to communications that are stored on a person's mobile phone or computer can
be procured pursuant to other lawful access arrangements, such as a general search
warrant.
15 Telecommunications (Interception and Access) Act 1979 (Cth) s 108.
16 Telecommunications (Interception and Access) Act 1979 (Cth) pts 3–2 , 3–3.
17 Telecommunications (Interception and Access) Act 1979 (Cth) s 109. Section 109 expands the
authority of an interception warrant to cover stored communications provided the warrant
would have authorised interception of the communication if it were still passing over a
telecommunications system.

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