Australian Privacy Foundation Vice Chair / Co-Chair of Surveillance Committee Dr Adam Molnar, and Co-Chair Surveillance Committee Dr Monique Mann recently gave evidence at the Joint Parliamentary Committee on Law Enforcement Inquiry on the impact of new and emerging information and communications technology.

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Good morning. We would like to thank the committee secretary and the panel members for inviting us to provide evidence on the challenges of information communication technologies on law enforcement, on behalf of the Australian Privacy Foundation, Digital Rights Watch Australia, Electronic Frontiers Australia and FutureWise.

Innovations in technology are an important public policy issue that affect all aspects of society, and we are pleased that the panel is devoting attention to this issue.

In our opening statement we would like to reiterate some of the main points from our written submission and provide a brief response to points raised in the written submissions by other government and law enforcement agencies.

We note that almost every party that made a written submission raised the issue of encryption – highlighting that it is crucial for innovation and cyber security, and yet presenting some challenges for law enforcement.

Encryption is an important public policy issue that demands careful and nuanced consideration. Encryption tools, technologies, and services are essential to protect against harm and to shield our digital infrastructure and personal communications from unauthorized access. The ability to freely develop and use encryption provides the cornerstone for today’s global economy. Economic growth in the digital age is powered by the ability to trust and authenticate our interactions and communicate and conduct business securely, both within and across borders. Any attempt to weaken or undermine strong encryption poses serious risks to cyber security. While we recognise law enforcement’s legitimate interest in accessing communications, we are fundamentally opposed to any attempt to weaken encryption given the additional risks this would entail for a range of groups and sectors including banking and finance, government, and the general public.

Encryption does not pose a fatal investigatory hurdle, and by contrast, it is an essential component of cyber security. It protects against cybercrime which is estimated to cost between 1 billion and 17 billion annually. According to the Department of Home Affairs we already see reports of ransomware attacks doubling each year. Weakening encryption will undermine the security of information communication technologies for everyone and will exacerbate these issues. The absence of encryption facilitates easy access to sensitive personal data, including financial and identity information, by criminals and other malicious actors. Once obtained, sensitive data can be sold, publicly posted, or used to blackmail or embarrass an individual. Additionally, insufficiently encrypted devices or hardware are prime targets for criminals.

Given the collective economic and social good that encryption provides we urge the committee to pay attention to existing legal and technical capabilities that enable access to evidence on physical devices in ways that will not unnecessarily inflict the unintended consequences of weakening the security of all digital devices. We outline issues associated with undermining encryption at length on pages 11 to 15 of our written submission, and set forth the existing legal and technical capabilities to access evidence on page 14.

In addition to encryption, and as per our written submission, we also wish to comment on other areas that fall within the inquiry’s Terms of Reference including darkweb policing, Mutual Legal Assistance arrangements for accessing extraterritorial digital evidence and the importance of independent criminological research in these areas. We welcome the committee’s questions on these topics. In summary, law enforcement play an important role in public safety and security, though we contend that law enforcement use of new ICTs should be supported with evidence, consistent with international human rights standards, subject to robust oversight and proper checks and balances – including judicial – and uphold the rule of law.

Read the full joint submission to this inquiry from Australian Privacy Foundation, Digital Rights Watch Australia, Electronic Frontiers Australia, and Future Wise.