Police and intelligence services will get rapid access to messages sent by terrorists, pedophiles and criminal gangs using US-owned technology platforms such as Google and Facebook under an access agreement being negotiated with the US government.
Home Affairs Minister Peter Dutton and US Attorney-General William Barr began formal negotiations in Washington for a bilateral agreement under a US law known as the CLOUD Act, which compels US tech companies to hand over data on their servers when presented with a warrant of subpoena by law enforcement agencies or the courts.
When finalised, the agreement will grant Australian law enforcement agencies the same ability to access data held by US technology companies, and require Australian technology companies to release information sought by US authorities.
At present, it can take Australian agencies six to 12 months to obtain access to data requested from companies such as Facebook, Google and Twitter, hampering investigations.
The Clarifying Lawful Overseas Use of Data Act has a specific provision aimed at reaching bilateral agreements with qualifying nations for cross-border data access. The Australian agreement will be only the second of its kind, after Britain finalised a bilateral data access deal in October.
Mr Dutton said the agreement would give investigators “direct access to data critical for the disruption, prevention, investigation and prosecution of serious crime”.
“Current access processes risk loss of evidence and unacceptable delays to criminal justice outcomes,” he said from the US. “
When police are investigating a terrorist plot or serious crime such as child exploitation, they can’t be held up by red tape and the CLOUD Act cuts right through that. This is the way of the future between like-minded countries.”
The move follows warnings from the Law Council of Australia and major technology firms that the Coalition’s recently passed encryption laws could prevent Australia qualifying for an agreement under the CLOUD Act.
They said the laws, which compel tech companies to grant police and security agencies access to encrypted messages, were inconsistent with a requirement of US legislation that foreign countries have robust data privacy protections. “The reason for this is that irrespective of what laws Australia may pass, they are insufficient on their own to compel a service provider in the US to do anything not authorised by US law,” the Law Council said in a submission to a parliamentary inquiry into the encryption bill.
However, the government is pushing ahead, arguing that the laws can co-exist.
Mr Dutton was invited by Mr Barr to the Lawless Spaces Summit on warrant-proof encryption and its impact on child exploitation cases.
The ministers signed an open letter during the summit to Facebook chief executive Mark Zuckerberg outlining serious concerns with the company’s plans to implement end-to-end encryption across its messaging services.
The summit, which was also attended by UK Home Secretary Priti Patel, called on Facebook not to implement the changes “without including a means for lawful access to the content of communications to protect our citizens”.
Mr Barr told the summit that end-to-end encryption on consumer products sought to “establish privacy as an absolute right without any regard to the safety of society as a whole”.
“It is hard to overstate how perilous this is. By enabling dangerous criminals to cloak their communications and activities behind an essentially impenetrable digital shield, the deployment of warrant-proof encryption is already imposing huge costs on society,” he said.
“It’s not just the reprehensible behaviour of sexual predation on children, but myriad additional forms of serious crime enabled by end-to-end encryption.
“This technology is quickly extinguishing our ability to detect and prevent a wide range of criminal activity — from terrorism, to large-scale drug trafficking, to financial fraud, to human trafficking, to transnational gang activity. The clock is ticking.”
Before departing for the conference, Mr Dutton hit out at the technology giants, saying the laws of society should apply online just as they did in physical space.
“If you’ve got a photograph of a child being sexually abused, the police can see that with a warrant, but if you send that picture as an attachment on an encrypted messaging app, then police can’t discover it,” he told 2GB radio.