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A rushed report from the Parliamentary Joint Committee on Intelligence and Security has made 17 recommendations for amendments to the government's encryption bill which is expected to be pushed through Parliament on Thursday.

The bill, officially known as the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018, was to be debated in Parliament on Wednesday but that did not eventuate.

The PJCIS report, which weighs in at 38 pages and repeats its recommendations, does not take into account any of the suggestions made by technical entities during the five days of hearing.

There are three ways listed in the bill by which law enforcement can get industry to aid in breaking encryption. A technical assistance request or TAR allows for voluntary help by a company and its staff will be given civil immunity from prosecution.

An interception agency can then issue a technical assistance notice or TAN to make a communications provider offer assistance based on existing functionality.

Finally, a technical capability notice or TCN can be issued by the attorney-general at the request of an interception agency. This will force a company to help law enforcement, by building functionality.

The PJCIS recommended that the bill be passed immediately, after its suggested amendments were included.

The report fleshes out a few changes that were known when the Labor Party announced it would support the bill:

  • the bill will only apply to offences with a maximum penalty of more than three years;
  • state and territory law enforcement bodies will be covered by the bill, but not corruption commissions;
  • the Commonwealth Ombudsman will be able to monitor use of the bill's power by the AFP, the the Australian Criminal Intelligence Commission, and state and territory interception agencies;
  • the inspector-general of intelligence and security must be given additional oversight of the use of the bill's powers by ASIO, ASIS and ASD;
  • technical assistance notices and technical capability notices have statutory time limits;
  • TANs should have a tiered approval system when they come from the states, with the AFP commissioner approving them;
  • the communications minister act to jointly authorise TCNs along with the attorney-general;
  • a systemic weakness will be defined in the bill;
  • the systemic weakness limitation will be extended to cover all listed acts or things in the bill;
  • two people investigate whether a TCN is workable, these being a technically qualified person approved by ASIO and a judge;
  • disclosure of a TCN will be allowed to the extent that it does not jeopardise any investigation, with approval to come from the attorney-general;
  • the bill must include language to ensure that it does not conflict with parliamentary privilege;
  • the bill must be reviewed after 18 months and the PJCIS will review it as soon as it is passed; and
  • no communications provider should be asked to voluntarily implement or build a systemic weakness or vulnerability under a TAR.

The five Labor members of the PJCIS included a few paragraphs in the report to justify their backing of the amended bill and their decision to pass it.

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Sam Varghese

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Sam Varghese has been writing for iTWire since 2006, a year after the sitecame into existence. For nearly a decade thereafter, he wrote mostly about free and open source software, based on his own use of this genre of software. Since May 2016, he has been writing across many areas of technology. He has been a journalist for nearly 40 years in India (Indian Express and Deccan Herald), the UAE (Khaleej Times) and Australia (Daily Commercial News (now defunct) and The Age). His personal blog is titled Irregular Expression.

 

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