In a statement on Wednesday, Stanton said while the changes agreed on by the government and Labor on Tuesday included additional safeguards around technical capability notices — which can be used to compel companies to build functionality into devices if ordered to do so — the same had not been done for technical assistance notices.
He said the TANs were just as dangerous as TCNs but operated with much less oversight and fewer protections.
According to Stanton, TCNs can be used to order communications providers to perform a range of tasks, including removing electronic protections from networks or devices, installing and maintaining software (such as malware and spyware) and concealing the fact that services have been altered, or even substituted.
However, he said, the TANs had a number of issues:
- they do not require any approval by the attorney-general;
- they do not require any consultation period with the communications provider and thus can take immediate effect; and
- can be issued, and subsequently varied by delegated officers within enforcement agencies, not just by the head of that agency.
Said Stanton: “While the draft Explanatory Memorandum seeks to distinguish between what can be required under TCNs as opposed to TANs, this is not reflected in the proposed legislation. Tighter controls on TCNs are welcome – albeit we have not yet seen the detail of what is proposed.
"It seems so far unclear, for example, whether a 'dispute' that would trigger an independent review of a TCN is a dispute between an agency and a communications provider, or a dispute between the attorney-general and the minister for communications. The latter scenario offers little or no protection to the communications provider or its customers.
“There is a real risk that while much is being made of additional protections around TCNs, agencies will simply exploit this loophole in the bill to direct their activities via TANs instead. Any agreed amendments to the Bill need to close this loophole.
“Numerous industry groups, including Communications Alliance, have highlighted this problem in testimony before the Parliamentary Joint Committee on Intelligence and Security. It needs to be addressed urgently before any legislation is returned to Parliament."
Stanton also found issue with the definition that had been provided by Attorney-General Christian Porter for the term "systemic weakness".
“A reported statement from the attorney-general as to government thinking about this definition is disturbing," he said. “The attorney-general is reported overnight to have, at a press conference, described a systemic weakness as 'a weakness that would affect all applications on all devices at any given single point in time'.
“Such a narrow definition would leave the door open to damaging consequences. For example, under the proposed definition, if an agency ordered a communications provider to install spyware on every smartphone they sold in, say, the state of Victoria, this act would introduce enormous vulnerabilities and risk to millions of Australians, but would not be serious enough to classify as a systemic weakness.
“Equally, if a smartphone manufacturer was ordered to install spyware that was triggered on any device that selected a specific language when being set-up by the user, this would also not be identified as a systemic weakness or backdoor."