ASIO and you

The following article was published in "The Guardian", newspaper
of the Communist Party of Australia in its issue of Wednesday,
September 29th, 1999. Contact address: 65 Campbell Street, Surry
Hills. Sydney. 2010 Australia. Phone: (612) 9212 6855 Fax: (612) 9281
5795. Email: <[EMAIL PROTECTED]>
Webpage: http://www.zipworld.com.au/~cpa
Subscription rates on request.
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So you thought that the Australian Security Intelligence Organisation was 
sneaky, invasive, contemptuous of civil liberties and riddled with 
right-wingers eager to carry out the wishes of the most reactionary 
government? Wait till you see the new version!

Legislation currently before Federal parliament would see the existing 
powers of ASIO greatly expanded, with a particular emphasis on the use of 
computer technology.

ASIO is currently exempt from many of the requirements of other government 
organisations.

For example, decisions currently made by the Minister responsible for ASIO, 
including a decision to issue a warrant for search or surveillance, are not 
subject to judicial review.

ASIO documents, and those originating in ASIO, cannot be obtained under 
Freedom of Information legislation.

The Human Rights and Equal Opportunities Commission cannot investigate 
complaints against ASIO concerning violations of human rights, and ASIO is 
exempt from the provisions of the Privacy Act 1988(2).

Under Australian law it is doubtful whether a court case could be 
successfully mounted to determine whether ASIO had complied with the legal 
or constitutional law in a particular case, and the organisation has little 
accountability other than to the government of the day.

So does the new legislation correct these defects? Not on your life!

The proponents of the new ASIO Bill claim that the amended legislation is 
necessary in order to curb white-collar crime and terrorism.

However, the legislation continues to give ASIO the potential to invade the 
homes of individuals and also the offices and operations of any 
organisation out of favour with the government of the day - including trade 
unions, peace groups, political parties, churches and community organisations.

It would extend the current provisions for breaking into homes or offices 
and tapping phones.

It would allow intelligence personnel to hack into computer systems, not 
only to gain information but to actually change the information held in the 
system.

Under the proposed legislation any encryption code used to maintain privacy 
could legally be broken by ASIO, which would also be empowered to place 
tracking devices on people and cars.

And ASIO would gain all of these new powers with even fewer constraints on 
it than currently exist.

There has been some speculation that the amended law is necessary in order 
to deal with the potential problems of terrorist activities during the 
Olympic games.

However, the Director General of ASIO recently told the parliamentary 
committee dealing with the amendments that security checking for the 
Olympics "doesn't involve ASIO in a new area of activity, it just means 
that we have more work to do in a compressed period of time".

Although part of the new legislation dealing with communication between 
State and Federal authorities would take effect before the Games, and would 
terminate the following December, the Government has denied that the 
legislation as a whole is intended specifically for the Games.

So most of it is intended as a permanent measure, not as a temporary expedient.

Encryption: you can't keep a secret, can you?

One of the most controversial areas of the new legislation concerns the use 
of encryption technology by computer users to forestall unauthorised access 
to such information.

The 1996 Walsh report on encryption, prepared by a former deputy 
Director-general of ASIO, recommended that ASIO should have the authority 
to gain "real time access to the voice and data communications of their 
subjects of investigation".

This would require the cracking of encryption codes.

These codes allow a computer user to maintain privacy about the information 
on their system, and of course can be used for good or ill.

The report recommended that there should be full public discussion on 
encryption, and on the report itself. However, the Government subsequently 
refused to release it.

Although the report appears to recognise that encryption technology is 
developing fast, and that major legislation at this time would probably be 
premature, the Government has now incorporated clauses dealing with the 
control of encryption in the legislation.

The amendments allow ASIO to access data relevant to security, print copies 
and remove them from the premises, make copies and alter, add or delete data.

This may be done either by entering the premises or by using electronic 
means (``remote access'') to a target's computer.

Although a section of the legislation purports to protect lawful use and 
users, this would be difficult to establish in practice.

The new law would allow ASIO to add, delete or alter computer data. Part of 
the amendments state that the Act does not authorise interference with the 
lawful use of computers.

However, as one commentator noted, "How will `accidental' interference be 
avoided by ASIO when data is being manipulated by remote access? How will 
it be detected by lawful users who suffer computer malfunction as a result?"

Encryption systems are available in Australia, but the Government is 
determined to keep available encryption systems within the range where they 
can crack the codes, both here and overseas.

In 1991 the small Australian company Nexus Solutions developed a very 
powerful encryption system for ensuring the privacy of medical records.

Permission to export the system to the World Health Organisation (WHO) was 
subsequently denied by the Defence Signals Directorate, unless the company 
underwent an accreditation test with one of three nominated companies.

Nexus was warned verbally to deal only with one American company in order 
to maximise the chances of accreditation, but a condition of that company's 
accreditation process was that Nexus would surrender the code to them. The 
WHO deal was effectively thwarted.

One justification given for the new measures is that they would allow for 
the surveillance of criminal or terrorist activities.

However, they would also allow ASIO access to confidential information 
about legitimate transactions, taxation information, medical records etc.

Moreover, organised crime in particular has the resources to hire the best 
brains in the business to gain the latest encryption technology.

The result of the Government trying to keep the available technology within 
a range that they can crack is that organised crime will continue to enjoy 
secrecy, but ASIO will be able to penetrate the records of trade unions, 
left-wing political parties, peace groups and community organisations.

Tax confidentiality: your business is ASIO's business

The new legislation would give ASIO access to taxation records without a 
warrant. The existing warrant process provides a check (in theory at least) 
against invasion of privacy.

However, not only would this disappear, but according to the official 
explanation, "The amendments will give ASIO officers similar access to 
taxation information as law enforcement agencies now have ... [and]  ... 
will allow ASIO officers to record and divulge or communicate the 
information in specified circumstances to law enforcement agencies and the 
Inspector-General of Intelligence and Security or one of his officers in 
specified circumstances."

According to other sources, this would also include the Inspector General 
of Intelligence Services and legal practitioners in defined circumstances.

That's an awful lot of people who could legitimately end up knowing your 
business.

The Taxation Department routinely promises that tax matters will be treated 
with confidentiality, but the amendment threatens to effectively blow away 
tax confidentiality altogether.

Warrant provisions loosened - or abandoned altogether

Under current legislation, a warrant must be obtained prior to certain 
action being carried out by ASIO.

The warrant process is supposed to ensure that infringement of privacy and 
civil rights by ASIO is justified, and is minimised.

For action of lesser infringement of those rights approval may be given by 
the Attorney General, or by the Director-general of ASIO.

However, under the new legislation the warrant process would be weakened 
with regard to the preservation of civil rights.

As recommended in the Walsh Report, ASIO would be authorised to use 
tracking devices and to re-enter premises to maintain, replace or remove 
the devices under the proposed legislation.

ASIO personnel would be able to re-enter premises after the warrant has 
expired, using "reasonable force", if necessary, to recover the device.

No warrant process would be necessary for collection of foreign 
intelligence within Australia if the amendments become law.

Under the new legislation reports on ASIO inspections may be made to either 
the Minister responsible or the head of the relevant agency.

Ministerial oversight of many inspections may therefore be lost.

Privatisation

One intriguing aspect of the present privatisation process concerns ASIO's 
ability to intercept articles being delivered.

Any interception of Australia Post items currently requires a warrant. 
However, private firms now handle an increasing amount of items delivered 
in Australia.

Under the new legislation interception of items carried by private firms 
would not require a warrant.

The Government would like to see Australia Post privatised, and if they 
achieve this, all items delivered would be fair game for ASIO interception. 
No warrant, no worries!

One tantalising area of the amendments concerns the recovery of costs by 
ASIO "for the giving of advice or the provision of services by the 
organisation to the persons at their request".

In other circumstances the introduction of "cost recovery" provisions for 
government organisations has foreshadowed their privatisation, in whole or 
in part, and has resulted in a blurring of the lines between a government 
and private organisation.

This clause appears to deal, in effect, with the sale of information or 
services by ASIO.

Who are these "persons", their customers?

One government document notes that costs can already be recovered from 
Commonwealth agencies, but there is no clear definition of who the 
"persons" referred to in these amendments might be.

Just how circumspect would ASIO be under the new legislation? The 
amendments don't say.

Could right-wing organisations, for example, purchase lists of known 
members of politically opposed parties? Surely not, you say. But who knows?

With regard to this clause political activist and former MLC Joan Coxsedge 
commented: "If money enters the equation, then surely ASIO is moving into a 
completely new area."

Some provisions of the amendments relate to special arrangements between 
ASIO and state authorities for the duration of the Olympics, for example 
the vetting of visa applications.

The current law enables any applicant who receives an adverse report from 
ASIO to appeal.

However, in the amendment as proposed, it may well be a state authority 
which is issuing the adverse report on which rejection is based. In such 
cases it is not guaranteed that the applicant would have any appeal rights 
at all.

The amended legislation would give ASIO considerably increased new powers, 
and would exacerbate rather than rectify the shortcomings of the current 
legislation.

So you thought you were probably free from ASIO worming its way into your 
private life? Think again!






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