An inquiry into Defence Department activities during the Tampa affair has highlighted the government's failure to protect the integrity of Australian domestic telecommunications according to privacy advocates.
Nigel Waters, Convenor of the Australian Privacy Charter Council, said the inquiry demonstrates that domestic communications, particularly those carried by non-realtime channels, are not sufficiently protected by the Telecommunications Services Act.
The Inquiry, conducted by Inspector General of Intelligence and Security (IGIS), Bill Blick, investigated the conduct of the government in its dealings with the Defence Signals Directorate (DSD) during the Tampa affair.
An unclassified version of the inquiry's findings, released last week, cleared the government of wrong doing. However, the DSD, which has jurisdiction over to monitoring offshore communications, was found in four instances to have breached rules for handling domestic communications.
The inquiry also considered legal issues surrounding the directorate's collection of a "particular mode of communication" during the Tampa affair.
"It became apparent for the first time that there could be doubt about the legal basis for an element of DSD's collection strategy in unusual circumstances," wrote Blick in an oblique reference to the unspecified communication method.
According to DSD advisors, the legality of monitoring the unspecified mode of communication was uncertain. Blick concluded in his report that a court would probably have found that the activity breached the Telecommunications Interception Act. However, he wrote, counter arguments suggest expert engineering advice would be required before a determination could be made.
"I would guess that what they were up against is the possibility that some communications -- which they thought only involved offshore or non-Australian parts of the telecommunications system -- in fact have a leg that passes through an Australian-based component in a way defined in the Telecommunication Interception Act," said Waters.
In such a scenario the DSD's monitoring activities would move beyond the jurisdiction of Intelligence Services Act and require an interception warrant.
According to Waters, the government needs to redefine the concept of domestic communication to reflect changes in technology.
"...the wider question that has yet to be flushed out in this whole thing is what actually constitutes a domestic communication," said Waters. "Does it mean communications between one Australian and another? Does it mean communications between one physical point in Australia and another? Does it have to be entirely within Australia or can it involve communications that goes to the States and come back?" he asked.
Another possibility, for the legal uncertainty round the mode of communication encountered by the inquiry said Waters, is that it was not a real-time channel.
If so, said Waters, the legal uncertainties highlighted in the report may be pertinent for the current debate surrounding amendments to the Telecommunications Interception Act.
"The government is trying to clarify the Telecommunications Interception Act to make it clear that if a message is delayed, then the period during when its stored and awaiting opening by the individual its not covered by it, which is outrageous," he said.
Waters said that the government may be trying to reap a "technological dividend" from the fact that modern communications can involve non-realtime means.
He added that this would leave the legal status of all communications that aren't completely realtime in doubt, including e-mail, voice message services and some forms of satellite communication.
Well this is being read as I type it (?), this give me and the rest of the internet community more reason to use PGP and not make the keys available to the gov.
When they legislate to make the keys public I'm outta here on the "net" and will go back to carrier pigeon.