The federal government’s proposed new powers for authorities to covertly take control of an individual’s online account are “antithetical” to democratic law and lack any due process, according to Twitter.
The Identify and Disrupt Bill, which hands sweeping new powers to the Australian Federal Police (AFP) and Australian Criminal Intelligence Committee (ACIC) to “disrupt” and hack into the computers and networks of suspected criminals, is currently the subject of a Parliamentary Joint Committee on Intelligence and Security (PJCIS) inquiry.
The legislation introduces three new warrants which would allow authorities to “disrupt” the data of suspected criminals, access devices and networks even if they don’t know their identities and take over their accounts covertly.
The warrants apply to any criminal offence carrying a jail sentence of at least three years, covering a broad swathe of offences.
In its submission to the PJCIS inquiry, social media giant Twitter focused on the account takeover warrants, saying they would create significant extraterritorial issues and if introduced, would be “divorced from standard due process requirements” and “antithetical to core legal principles enshrined in democratic law and procedural fairness”.
“Twitter is concerned that the proposed bill will allow law enforcement direct access to data regardless of the location of the server, without requiring knowledge of such access being provided to the service provider, and in the case of account takeover warrants, absent the agreement of an appropriate consenting official of the relevant foreign country where the warrant would be enforced,” the Twitter submission said.
“The account takeover warrant will apply extraterritorially with Australian law enforcement being authorised to take control of an online account regardless of where the account data is located and without consent from foreign governments or officials.”
The tech company said it was unclear what its own rights and obligations will be under the scheme, which could see Australian authorities secretly take control of one of their users’ accounts, and how it will impact the privacy of their users.
“There is no consideration or reference in the bill of the implications of law enforcement agencies accessing a service without the knowledge of the service provider. We are very concerned about the implications for Twitter’s own obligations as a company, as well as the rights and privacy implications for the users of Twitter and other online services,” Twitter said.
The government has also not considered the impact of these new powers on innocent third parties that may interact with an account that is being secretly operated by the AFP, Twitter said.
“It does not appear that the bill has contemplated any processes to consider and protect the rights of any third-party users who may interact with the account that has been subject to an account takeover warrant,” it said.
“This again raises a number of inherent privacy concerns and potential violations of substantive rights, as well as potential conflict of laws if these third party users are outside of Australia.”
“Therefore, we recommend that the government institute the necessary protections and procedures to address these issues in order to preserve democratic processes, extend privacy protections, and enshrine procedural fairness within the context of the bill.”
In a separate submission, the Communications Alliance also raised concern with the “potential for far-reaching consequences” with the new powers and called for amendments requiring that the relevant service provider be consulted before a warrant is issued, and to require independent judicial oversight and authorisation of warrants.
The Department of Home Affairs also made a submission to the PJCIS inquiry, confirming that it plans for the account takeover warrants to be used in conjunction with other warrants.
“An account takeover power could be used in conjunction with a controlled operation which would authorise the AFP or the ACIC to assume the account holder’s identity, engage in ongoing interactions with associates to elicit information and assist in the identification of offenders and collection of evidence of the offending,” the Home Affairs submission said.
“Enabling the AFP and ACIC to take control of an online account in these circumstances is an extremely valuable tool and would facilitate better evidence-gathering against criminals, mapping of their criminal networks and potential identification of victims.”
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