Latest spying update … Legislation for International Production Orders … Spooks picking through your data held on foreign servers … Bad news for public interest and human rights organisations, not to mention reptiles of the media and their sources … Coalition cronies on the AAT can sign off IPOs … Janek Drevikovsky reports on the wider scope for Washington’s regime of global spying 

Yet again, Grub St hacks are subject to new government intrusions, courtesy of Home Affairs Minister Peter Dutton. No amount of spying is ever enough. 

The new enactment, the Telecommunications Legislation Amendment (International Production Order) Bill 2020, aims to keep Australia’s spooks in closer steps with their American counterparts.

It’s a response to the a United States law passed in 2018, the Clarifying Lawful Overseas Use of Data Act — wistfully abbreviated to “the CLOUD Act”. Under the Act, US authorities can demand foreign branches of US companies to give up data stored outside the United States. 

The new Australian Bill accommodates and broadens Washington’s overseas spy-scheme. 

Presuming that the US enters into a “mutual assistance treaty” with Australia, ASIO and the like will be able to demand data held in the United States. And US agencies will be able to demand data held in Australia.

The Bill is not restricted to our dalliance with the US. Once the legislation is enacted, Australian agencies will be able to team up with any “like minded country”, to directly surveil each other’s people. 

The Bill is before the Parliamentary Joint Committee on Intelligence and Security, but with the distraction of COVID and the Opposition playing second fiddle to the government’s tune, levels of public scrutiny are low. 

In fact, there’s a lot to scrutinise. 

International Production Orders (IPOs) are the latest terror dreamed up by the national security regime. 

They’re the main innovation of the Telecommunications Legislation Amendment (International Production Order) Bill 2020 and represent a significant winding-back of the already-scant protections currently enjoyed by journalists and other information gatherers. 

When granted, an IPO allows Australian authorities to intercept communications made overseas or to access data stored on foreign servers. The IPO has to relate to suspected criminal conduct, or to a control order under the Criminal Code, or to national security.  

IPOs will be available to the same security agencies that can already intercept communications and hack Australian’s data under the Telecommunications (Interception and Access) Act.  

So think ASIO, the AFP and state police, as well as other organisations declared by the Attorney General. 

To apply for an IPO, the security outfits are required to go to an “eligible judge”. Any consenting judge nominated by the AG is “eligible”. So too are members of the security division of the Administrative Appeals Tribunal. 

As Crikey has reported at length, the AAT is stacked with former Coalition staffers, failed Coalition MPs and all-round cozy pals of the current government.  

Let’s assume all AAT members will exercise their powers with fearless independence – yet even then, the procedure leaves next to no room for rule of law or human rights concerns in the granting of IPOs.

So long as there’s reasonable suspicion that the IPO will uncover relevant data or intercept a relevant conversation, it can be granted. 

For the Grub St hack, there are no special protections for journalists, their sources or human rights advocacy groups. 

That’s a step backwards from where we currently are. The domestic equivalent of the IPO was added to the Telecommunications (Interception and Access) Act in 2015. ASIO and other agencies were empowered to read Australians metadata – without a warrant.  

It’s flawed but thrown to the media as a bone and told it’s better than nothing at all. 

As for the media the IPO Bill is the very model of nothing at all. Journalists, the press and public interest news gathering are not mentioned. 

The result is that journalists’ data, when held in foreign servers, will be open pickings for security agencies. 

The media’s union, the MEAA, has condemned the bill on precisely this basis: 

“The Bill undermines a journalist’s ethical obligation to never reveal the identity of a confidential source,” media-section federal president Marcus Strom said.

“If a government, US or Australian, accesses that information it imperils the whistleblowers who seek to expose wrongdoing, undermining the public’s right to know what our governments do in our name.”

Shadow AG Mark Dreyfus took up the issue in a hearing of the PJCIS. He asked a government official: 

“Are you able to tell us why an Australian journalists whose telecoms data is held by a US carrier should have fewer protections than an Australian journalist whose telecoms data is held in Australia?” 

The official, Andrew Warnes from the Home Affairs Department, replied that all requests for an IPO have to come before a judge or AAT member:

“Now all requests for metadata have to be done under this regime at a higher level of authorisation, when they’ll go to an independent authoriser.”

Dreyfus pressed the point, contending that AAT-authorisation was no substitute for the dedicated journalist warrant process. 

Warnes said he had “nothing further” to add. 

Janek Drevikovsky’s reporting for Justinian is supported
by the Judith Neilson Institute for Journalism & Ideas