[LINK] OzIT: 'ISPs force rewrite of law'

[Roger Clarke]

ISPs force rewrite of law
The Australian IT Section
Karen Dearne
September 29, 2009
http://www.australianit.news.com.au/story/0,24897,26137600-15306,00.html

INTERNET lobbyists have forestalled a law that could turn internet 
service providers into online sheriffs.

The federal government has substantially rewritten a bill intended to 
protect computer networks before its tabling in parliament by 
Attorney-General Robert McClelland.

Electronic Frontiers Australia spokesman Geordie Guy said it was 
unclear if the draft Telecommunications (Interception and Access) 
Amendment Bill was an "attempt to sneak through" a wholesale 
expansion of intercepts of private emails and file-sharing or merely 
a badly drafted bill.

"There was an incredibly short two-week consultation period but it 
only takes one of our members to notice what is going on and wave the 
flag," he said. "The bill is now significantly less broad, and its 
scope is essentially limited to those (monitoring) government agency 
networks."

The Attorney-General's Department said the aim was to legally protect 
network administrators who may "inadvertently breach the TIA Act" 
when intercepting private communications in security defence 
activities.

Government employees have been protected by an exemption due to end 
on December 13, and the draft bill suggested extending that 
protection to all persons "lawfully engaged" in operating networks, 
such as businesses and ISPs.

Mr Guy said EFA's main concerns involved the vague phrase 
"appropriate purposes" -- "and who determines what's appropriate and 
why" -- and the potential use of intercepted communications "for 
disciplinary purposes".

"The draft left it open for police to approach anybody in a position 
of authority in any organisation and require them to wholesale hand 
over information under an organisation's acceptable use provisions," 
he said.

Internet Industry Association spokesman John Hilvert was also pleased 
by the changes, saying the original bill suggested "a new 
discretionary ability for ISPs" that conflicted with their 
obligations under privacy laws and the act generally.

"There's a tendency to overlook the fact that an ISP's prime function 
is as a conduit," Mr Hilvert said. "Most users assume that their 
content will be absolutely confidential and is not to be shared 
unless there is a magistrate's ruling that material can be viewed by 
an authorised person, such as a policeman.

"So most assume they will only be contacted by their ISP if there's 
something affecting the network -- not because there's potentially 
some content that may breach copyright, for instance. That's not a 
crime, that's an infringement."

Mr Hilvert said there was a risk ISPs would have been forced to 
become "deputy sheriffs for almost everyone" under the proposed 
provisions.

Mr McClelland has also introduced an amendment to the Serious and 
Organised Crime Act that gives police agencies greater powers to 
search and seize data from electronic equipment, no matter where it 
is held on a system, and to compel a person to provide access to the 
data.

"These powers, currently only available when the computer is on the 
warrant premises, will assist officers in overcoming challenges posed 
by technological developments such as encryption," Mr McClelland said.
Both bills have been referred to the Senate Legal Committee for public comment.

Meanwhile, the Rudd government is still considering its position on 
the Council of Europe's Convention on Cybercrime nearly 18 months 
after signalling it was ready to start talks on the widely accepted 
global framework.

An Attorney-General's Department spokesman said it was necessary to 
ensure that it was in Australia's "best interests to comply" with the 
convention, and consistent with domestic law.

"The fact Australia is not a signatory is not an impediment to the 
investigation of cybercrime across borders," he said.

"Alternative avenues exist for law enforcement to co-operate with 
their international counterparts, including under mutual assistance 
arrangements."


-- 
Roger Clarke                                 http://www.rogerclarke.com/
			            
Xamax Consultancy Pty Ltd      78 Sidaway St, Chapman ACT 2611 AUSTRALIA
                    Tel: +61 2 6288 1472, and 6288 6916
mailto:Roger.Clarke at xamax.com.au                http://www.xamax.com.au/

Visiting Professor in the Cyberspace Law & Policy Centre      Uni of NSW
Visiting Professor in Computer Science    Australian National University