In an analysis of the recent legislation, Electronic Frontiers Australia (EFA) claimed that search and seizure provisions included in the Spam (Consequential Amendments) Bill 2003 (PDF) enable some government employees and police to search and seize an individual's computer and other possessions without a search warrant and without the consent of the individual.
If the proposed legislation passes into law it will change Section 542 of the Telecommunications Act 1997 to allow inspectors to conduct searches without a warrant if they have the consent of the "owner or occupier" of the premises.
EFA is concerned this will give inspectors the power to enter and search homes and possessions inside without the consent of the person who owns those possessions. Those possessions may include computers, files, and documents.
"An inspector could enter a home with the consent of the landlord (the owner) and search the tenants' computers and other possessions," said the EFA in the analysis. "In the case of a residence shared by several people (e.g. joint owners/tenants, flat mates, family, etc.), an inspector could enter the home with the consent of one occupier and search possessions belonging to a different occupier."
EFA recommended that the "entry, search and seizure provisions must be changed to require a warrant issued by a magistrate".
"We still think that the Bill can be made sensible, it's just there's some problems with it," Irene Graham, executive director of EFA told ZDNet Australia . "It shouldn't be passed as it is because there's too many problems that need fixing."
Graham said EFA thought the legislation was a good idea, but pointed out other issues with the Spam Act 2003 that needed to be addressed before it should be passed.
This included some of the definitions of spam -- for which Graham said the EFA was yet to work out viable alternatives -- and the exemption that allows political and religious organisations to send commercial messages. In addition, the EFA is worried about a provision that allows people to be jailed for up to six months for not providing access keys and passwords to investigators, despite the fact that the crime they are being investigated for is not punishable by jail time.
EFA are dead right. The bill warrants the same action as an Anton-Pillar order - which could conflict with the privacy of the other occupiers.