Feds defend surveillance power

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James Riley

The federal government has defended controversial legislation creating a new facial recognition system amid widespread criticisms of its scope and privacy implications, including claims it will usher in a “new era of total surveillance in Australia”.

The Identity-Matching Services Bill 2018 was introduced to Parliament in February following a CoAG agreement last year. The legislation allows for the creation of an interoperability hub to be operated by the new Department of Home Affairs which would facilitate the exchange of biometric data between jurisdictions.

It would also create new systems including the Face Identification Service, which would allow law enforcement and other agencies to identify an individual based on a photograph, and an expansion to the Face Verification Service, which enables the confirmation of identity based on biometrics in existing documents like driver’s licences.

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The legislation lets the department “collect, use and disclose identification information in order to operate the systems that will support a set of new biometric face-matching services”.

There has been an ongoing debate over the impact the new facial recognition regime would have on privacy and civil liberties since it was first revealed by Prime Minister Malcolm Turnbull last October.

Numerous digital rights and civil liberties organisations have criticised the scope of the new rules, the powers handed to home affairs minister Peter Dutton, and the access to the proposed hub given to private sector organisations – including banks and phone companies.

The legislation, along with a bill allowing for travel documents to be included in the hub, was sent to a committee inquiry last month. The committee will report back in May. The inquiry accepted submissions for only a handful of weeks.

Several submissions from privacy and civil liberties organisations are fiercely critical of the legislation and argue it should rejected, with a number of concerns raised about its scope and impact on the privacy of everyday Australians.

TheOffice of the Victorian Information Commissioner said it has “serious concerns” about the legislation’s impact on privacy and civil liberties.

In its own submission, the Department of Home Affairs rejected many of the privacy concerns surrounding the new facial recognition system.

“The Department considers that the privacy safeguards built into the Bill are sufficient to ensure that the services are only used in appropriate circumstances and by appropriate authorities,” the submission said.

A major concern surrounding the legislation raised in several submissions is that it would pave the way for more widespread, “blanket” surveillance of the general population.

In its submission, Civil Liberties Australia argued that the new system would “shift Australia to a post-privacy age and into a new era of total surveillance”.

“These bills now usurp the limited consent given previously and allow the use of data for an endlessly expanding list of surveillance and monitoring activities. It is only a matter of time before the combination of cloud-services, mobile, high-definition video capture and big analytics will make such real-time surveillance possible, cheap and enticing,” the Civil Liberties Australia submission argued.

“When that happens, we can again expect to hear similar claims that our police and spy agencies ‘are only effective if they have the tools necessary to effectively enforce the law and detect and prevent threats to the Australian community’,” it said.

This concern was also raised by the Australian Human Rights Commission in its submission.

“At least some of the identity-matching services defined in the Bill could potentially allow for very intrusive surveillance to be conducted in public places,” the AHRC said.

“The Minister would be given very broad powers to define new kinds of identity-matching services and kinds of information that could be shared through them. These powers could lead to further very significant intrusions on privacy,” it said.

The federal government has said that the facial recognition services would still be bound by relevant privacy laws, and the new legislation “does not authorise other agencies to undertake mass surveillance”.

The Department of Home Affairs also argued that such mass surveillance wouldn’t be “feasible”.

“The bill will enable the Department to provide agencies with the tools to quickly and securely share and match data that they can lawfully collect, use and disclose to other agencies,” the department said.

“The Department also considers that ‘mass’ or indiscriminate use of the face-matching services would not be feasibly in practice, given that the systems supporting the services are not designed to support this type of usage and that agencies would not have the resources, including personnel sufficiently trained in facial recognition, to devote to this kind of usage.”

There has been a growing push from civil rights groups in Australia for the facial recognition technology and hub of biometric data only be made available to law enforcement agencies after the issuing of a warrant.

In its submission, the Queensland Council for Civil Liberties argued that access to biometric data for purposes other than what it was collected for should be limited to situations involving a warrant from a judicial officer.

“We accept that circumstances may arise which make it impractical to obtain a warrant. However, impracticability should be assessed in the context of current technology given the provisions allowing for electronic applications for a warrant,” Queensland Council for Civil Liberties president Michael Cope said.

“If an official exercises a power to access the database in circumstances of impracticality, that official must then, as soon as reasonably possible, justify that action to a judicial officer,” he said.

This push was backed by several other submissions, including from the Australian Human Rights Commission, but has already been ruled out by the federal government.

In its submission, the Department of Home Affairs argued that requiring a warrant to access the hub would hinder law enforcement and slow down crucial investigations.

“One of the key benefits of this will be the increased speed with which these agencies can determine the identity of a person of interest, and take any steps necessary to protect the community from harm,” the department said.

“The privacy benefits of requiring agencies to obtain a warrant would likely be significantly outweighed by the decreased ability of agencies to carry out their law enforcement and national security functions,” it said.

The legislation also allows for private sector organisations to access the Face Verification Service to confirm the identities of customers.

In it submission to the inquiry, Lawyers for Human Rights argued that this shows a “lack of good faith on part of government” and “calls into question the constitutional basis of the legislation”.

“Substantial infringements upon individuals’ privacy rights are being given away by government in the name of security, but at the same time a door is being left open for those same privacy infringements to be ‘monetised’ for commercial purposes,” the submission said.

But the government argued that allowing private sector access to the system will assist in combating crimes like identity theft.

“Providing the private sector with access to the FVS will help prevent this from occurring, protecting the identities of innocent Australians and helping companies such as financial institutions and telecommunications providers to better meet their regulatory customer identification obligations that help to contribute to national security and law enforcement outcomes,” the government said.

It confirmed that access to the system would only be granted to the private sector if it is “reasonably necessary”, and the organisations will only get a “match” or “no match” response to a face query.

The government did concede to include a number of minor amendments to the legislation currently before Parliament, including requiring the Minister to have regard to submissions made by the Human Rights Commissioner when making new rules in relation to the system and annual reporting on the use of the system.

“These amendments would increase the transparency and accountability measures in the bill,” the government said.

Groups were given less than a month to provide submissions on the bills to the inquiry, and this short time frame was also criticised by a number of organisations.

In its submission, Lawyers for Human Rights said that the timeframe is “particularly short and fails to allow for adequate consultation on legislation that has the potential to impact the human rights of all Australians”.

“There may well be other issues in relation to the Bills which we have failed to identify but which are also of importance,” the group said.

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