[LINK] OzIT: 'ISPs force rewrite of law'
Roger.Clarke at xamax.com.au
Tue Sep 29 09:08:21 AEST 2009
ISPs force rewrite of law
The Australian IT Section
September 29, 2009
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
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
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
"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,"
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
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
"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
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
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
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