Federal Government’s Proposed New Encryption Laws

The Federal Government has recently announced that it intends to make new encryption laws to force tech companies to provide law enforcement authorities with assistance to intercept and decrypt communications. While little else is known concerning the details of these proposed laws, the language which the Prime Minister and the Attorney General have used to describe it is concerning.

Most people accept that there is a need for our laws to keep up with changes in technology and that the delicate balance between civil liberties and community safety must change in response to the circumstances which we face as a society. However, the proposed new encryption laws shift that balance too far towards authoritarian style, Big Brother surveillance by the state of its citizens.

Reading between the lines of what both the Prime Minister and the Attorney General said in their press conference, it appears that the new encryption laws will seek to force tech companies to help law enforcement authorities with intercepting and decrypting communications by building tools for that purpose. It is one thing to require companies to release information they already have to law enforcement authorities; it is quite another to force them to “assist” those authorities with decrypting that information.

To force tech companies (or for that matter any other non-Government entity) to build tools for law enforcement authorities to help them crack encoded messages would be an unprecedented incursion into the civil liberties of private individuals and companies. Effectively, it amounts to the Government co-opting the private sector to do its job for it.

If this is what the legislation will require, then it is disingenuous of the Government to claim that the new encryption laws will not involve any change in legal principle but will simply bring those principals into the online world. The truth of the matter is, existing obligations to cooperate with law enforcement authorities already apply as much to the online world as they do in the real world. The only reason the Government might need new legislation would be to impose new and fundamentally different obligations.

As if the civil libertarian concerns were not enough, there is also the obvious danger that any decryption tool built for law enforcement authorities could be leaked to criminal organisations which will then use it to wreak havoc on ordinary law-abiding citizens and organisations. We would do well to remember that the recent, devastating wannacry cyber-attacks-which crippled many computers around the world and caused an estimated four billion dollars’ worth of damage, originated with a leak from the NSA. We would be naïve to think that if these new powers are implemented the resulting decryption tools would only ever be used for legitimate law enforcement purposes.

Michal is a Law Society Accredited Specialist in Criminal Law. If you need help with a criminal matter, contact Michal today.


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