Interception overhaul may OK ISP spying

The Federal Government is planning a radical overhaul of telecommunications interception rules, which has some concerned it may be used to force internet service providers (ISP) to inspect customers' online activities.

The Telecommunications (Interception and Access) Amendment Bill 2009 — Network Protection contains legislation designed to extend interception powers from certain government agencies to any Australian network operator. The Bill is currently scheduled to appear before Parliament for debate prior to mid-December.

In late July the Attorney General's Department (AGD) released its discussion paper outlining the government's proposed changes to the Act. The government intends to introduce the amendments as a temporary exemption from the Act for some government agencies and will expire on 12 December.

The proposed amendments would exempt any network operator from interception prohibitions if it was conducting security protection measures that might include inspecting incoming traffic. Under current legislation, it is illegal under most circumstances to intercept inbound communications before it has reached its intended recipient with the offence punishable by up to two years' imprisonment.

While the AGD's paper positioned the changes as a way to counter, for example, data breaches, denial of service or malware attacks, internet user advocate group Electronic Frontiers Australia (EFA) was concerned the amendments were in part an effort to remove restrictions on an ISP that prevented it from inspecting its customer's internet habits.

"It looks like it's part of a push to permit and require ISPs to monitor what's going through their network," EFA spokesperson Geordie Guy told ZDNet.com.au.

Guy also noted the extremely short notice of 14 days the public was given to respond to the proposed changes.

The gap in legislation, which AGD said in its paper that it wanted to close, was concerned about how information gathered under network protection duties could be used or disclosed to a third party, for example, if it were to be used as evidence in a court case.

Earlier this year Communications Minister Senator Stephen Conroy called iiNet's defence in the Federal Court case brought against it by the Australian Federation against Copyright Theft a joke worthy of a Yes Minister episode. "The capacity to ignore what the customers are doing and claim no responsibility is being tested in court right now," he said. "It could be a ground-breaking case."

EFA's submission to the AGD paper noted that the Copyright Act's safe harbour provision says that an ISP was not required to monitor customer activity, and as iiNet has said it intends to argue, was illegal under the Telecommunications Act.