Dr Pfefferkorn, who works with the Stanford Centre for Internet and Society, but made her submission in an individual capacity, said the Australian Federal Police had used some of the provisions in the law during recent raids on the ABC and News Limited journalist Annika Smethurst.
"Thanks to new powers granted by Schedule 3 of the Act, the warrant to [the] ABC allowed the AFP to 'add, copy, delete or alter' material on the ABC’s computers," she wrote. "That is, the police had authorisation to change, tamper with, even destroy other ABC computer files, so long as they could say it was necessary to get access to the data they were seeking."
A review of the encryption law, officially known as the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018, was instituted by the Parliamentary Joint Committee on Intelligence and Security, as soon as it was passed, on 6 December 2018, with a reporting date of 3 April. It was expected to provide some solace to the technology industry.
But the PJCIS kicked the issue down the road, asking the Independent National Security Legislation Monitor, Dr James Renwick, to review the law and report back by 1 March 2020. The PJCIS will then submit a report to Parliament by 13 April 2020.
Dr Pfefferkorn said the AFP's "thuggish attacks on press freedom" did not occur in a vacuum. "To take another example, last month it came out that Home Affairs interprets the Act’s definition of 'designated communications providers' to mean that even fast-food joints can be dragooned into helping agencies carry out surveillance," she said.
"This is hard to reconcile with earlier claims by agencies that the Act is narrowly targeted, such as the assertion by the head of the Signals Directorate that the Act “was designed to target terrorists, paedophiles and criminals, not law-abiding Australians.
"During its review last year, did the Committee anticipate that the Act would allow snooping on Australians who browse the Internet while enjoying a hamburger? When evaluating the Data Retention Act five years ago, did the Committee foresee police rifling through a female journalist’s underwear drawer?"
Dr Pfefferkorn urged the PJCIS to take a good look at the decline of press freedom in Australia. "You enabled that decline by approving laws such as the Assistance and Access Act and the Data Retention Act that expanded Australian law enforcement and intelligence agencies’ powers in recent years, to the predictable detriment of Australians’ rights. Now you must reckon with the role you played," she said.
She also pointed out that Australia would find it difficult to strike a deal with the US on the CLOUD (Clarifying Lawful Overseas Use of Data Act 2018) Act. This law allows Washington to obtain data stored overseas by American companies in the event that it is deemed to be needed by law enforcement authorities. The reverse would also be allowed if any country can strike a deal with the US after meeting certain conditions.
Dr Pfefferkorn said Australia's eligibility to strike such a deal "is to be evaluated by factors including 'adhere[nce] to applicable international human rights obligations and commitments or demonstrate[d] respect for international universal human rights, including ... protection from arbitrary and unlawful interference with privacy ... [and] freedom of expression'. The question is whether, in light of the Act (and its other law), Australia can meet that eligibility bar."
She touched on concerns raised by numerous other submissions, about the Act hurting tech businesses. "...the Act is hurting Australian companies, spooking both current and potential customers, and making other countries look like more attractive options for doing business," she said.
"If the government wants to help Australia’s young cyber security sector become a global leader by closing the gaps in innovation, exports, and skills training, it can ill afford to give with one hand while taking away with the other."