[LINK] Ombudsman and ISP access

Tue Nov 9 15:51:07 AEDT 2010

Ombudsman spies "problems" with carrier access

By Ry Crozier on Nov 8, 2010  http://www.itnews.com.au

Lack of clarity when police seek data stored by ISPs.

The Commonwealth Ombudsman has for a second time raised concerns with the 
Attorney-General over the way Australia's law enforcement agencies gain 
access under federal interception laws to emails and text messages stored 
by carriers and ISPs.

In its 2009-10 annual report [pdf] released late Friday, the ombudsman 
said it was involved in inspection and oversight of 16 different 
agencies "in relation to the use of covert powers".

<http://www.ombudsman.gov.au/pages/publications-and-
media/reports/annual/ar2009-
10/download/PDF/ombudsman_anrep_2009_2010_full.pdf>

It conducted 17 inspections for 15 agencies on their use of the stored 
communications access scheme described within the Telecommunications 
Interception Act (TIA).

The scheme was designed to "permit access to communications that have 
been stored [at rest] by a carrier," the ombudsman said.

Stored communications were usually emails and text messages, although 
they could also be video and images electronically stored by a carrier or 
ISP. Access to these messages required a warrant.

The ombudsman said that in 2009-10, "problems were again identified with 
respect to access of stored communications and compliance with the TIA 
Act.

"There continues to be disagreement about the requirements that 
legislation places on both agencies and carriers," the ombudsman said.

"These difficulties have been compounded by lack of record keeping 
demonstrating when warrants are executed.

"We have raised our concerns with the Attorney-General".

Similar concerns were raised by the ombudsman in its report the previous 
year.

Surveillance and privacy

The ombudsman also noted that it had raised some concerns with the 
Australian Federal Police (AFP) over telecommunications interceptions.

Interception typically involved recording telephone conversations "or 
other transmissions passing over a telecommunications network" rather 
than data at rest.

An inspection of AFP records saw the agency "generally found to be 
compliant" with the Act, although the ombudsman noted that "three 
recommendations were made, two of which related to the keeping of ‘use 
and communication logs' and the other to the description of offences on 
warrants".

Further concerns had been raised by the ombudsman with the AFP and the 
Australian Crime Commission regarding the way they sought extensions to 
surveillance orders.

Surveillance typically involved the use of listening devices, cameras and 
tracking devices and "usually required a warrant", according to the 
ombudsman.

Although there was a "high level of compliance" with legislated 
obligations, the ombudsman raised concerns with the two agencies "in 
relation to their preference to obtain new warrants to authorise ongoing 
surveillance activities rather than utilising extension provisions within 
the [Surveillance Devices] Act."

"While the practice of obtaining a new warrant is not unlawful, it has 
the potential to obscure the duration that a target has been under 
surveillance and the subsequent impact on the target's privacy," the 
ombudsman said.

"We have continued to draw attention to this issue with agencies and the 
Parliament."

--

Cheers,
Stephen