New encryption laws threaten journalism: tech experts

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Encryption legislation rushed through Federal Parliament on the last sitting day of 2018 is a serious threat to investigative journalism, according to digital rights group Electronic Frontiers Australia.

The Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018 - also called the AA Bill - will force messaging platforms like Whatsapp and Facebook Messenger to build in ‘backdoor’ mechanisms that would allow government access to encrypted messages.

EFA board members Justin Warren and Peter Tonoli, who also recently spoke at a forum event called ‘Encryption, Data and the Law’ run by the Melbourne Press Club, said this circumvented entirely the concept of encryption, and the reach of the law “affects everyone.”

They said encryption services facilitated vital online security that is absolutely necessary in a world of hackers, cyber threats and constant data breaches, making it an integral feature of online transactions.

Journalists rely heavily on these secure networks provided by encryption services. Without them, security that must be provided to informants, sources and whistle-blowers, is compromised, creating further hurdles for investigative journalism projects, which already face many challenges.

Warren said the dangers of restricting the Press in such a way should be understood as an affront to liberal democracy.

“It becomes a question about consent and control over who has access to what information under what circumstances,” he said.

Tonoli said that the legislation could put journalists at risk, should sensitive, and potentially damaging, information land in their hands – a situation familiar to any journalist with a scoop.

According to Warren and Tonoli, the proposed backdoor mechanism weakens the overarching system of encryption, creating a loophole that could easily be targeted by hackers and online criminals, a point the tech world widely agrees upon. If damaging information is involved, this can absolutely risk the safety of journalists, said Warren.

They said journalists should also be wary of assuming benevolence on the government’s part in surveillance efforts.

The legislation contains additional provision of assistance to foreign governments, which could open up journalists to scrutiny from governments beyond Australia.

“It comes down to trust, and another part of that trust question is with which government… It’s called jurisdiction shopping,” said Warren.

“The legislation also significantly lowers the bar [in terms of] the oversight for these surveillance powers as well. It’s not just about encryption,” warned Tonoli.

According to Warren and Tonoli, the legislation is a further shameful step of encroaching government surveillance. They said the government already had a range of existing powers sufficient for security surveillance.

“We haven’t heard from police why the existing powers are inadequate, other than handwaving… they haven’t specifically articulated the gaps in the existing legislation that prevent major crime [from being addressed],” said Warren.

The two EFA members said unnamed Australian intelligence workers had expressed concerns that the legislation would weaken national security.

The Australian Financial Review has also reported that members of the ‘Five Eyes’ security alliance, comprising of Australia, Canada, New Zealand the UK and the US, have also signalled concern over the changes.

“The striking thing to me, and in conversations with others… is that foreign intelligence organisations are not keen on it, because they understand that creating weaknesses in the system actually create problems, because if it leaks, as they always do, then criminal enterprises, terrorists, etcetera will get a hold of it,” Warren said.

“They know that, but they’re at a little bit of a disadvantage because the nature of their work means that it is done in secret, and they try very hard to be seen as nonpartisan.”

ASIO’s official submission to the Intelligence Committee, the body appointed take feedback from civil society, private enterprise and interested parties, remains classified.

More generally, the submissions from civil society to the Intelligence Committee were not well received, according to Tonoli.

“From the whole process, the amount of time provided for comment, the fact that none of those comments resulted in material changes, indicates that the government is not interested in hearing from any form of opposition, be it private enterprise, civil society, or anyone else,” Warren agreed.

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