[LINK] ISPs force rewrite of law

Bernard Robertson-Dunn brd at iimetro.com.au
Tue Sep 29 09:12:47 AEST 2009

ISPs force rewrite of law
Karen Dearne
September 29, 2009
The Australian

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 

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 

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."


Bernard Robertson-Dunn
Canberra Australia
brd at iimetro.com.au

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