GENEVA (18 October 2018) – The Australian Government should drop its "fatally flawed" proposed legislation that forces tech companies to help spy on citizens in various ways, including granting access to phones and other devices, the UN Special Rapporteur on the right to privacy said today.
Joseph Cannataci said that the Government’s Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018 was "a poorly conceived national security measure equally as likely to endanger security as not".
"It is difficult to see how the Australian Government can achieve its aims without weakening encryption and thereby Australia’s cybersecurity. The legislation established in Australia is important internationally due to the risk of malware introduced into one device, spreading laterally throughout IT environments – a risk that is growing with the convergence of cyber and electronics and of major concern to technical and cyber security communities."
The Special Rapporteur said it was "technologically questionable" whether the legislation could achieve its aims and avoid introducing vulnerabilities to the cybersecurity of devices, whether mobiles, tablets, watches, or cars, for example.
"And it unduly undermines human rights," he said. "It is out of step with international rulings, raising the related issue of how the Australian government would enforce this law on transnational technology companies."
Cannataci also was concerned by the lack of independent judicial oversight of the use of these powers and questioned the case for the legislation, the haste with which the Bill has been introduced into the Parliament and the apparent failure to consider alternate means.
"Requiring companies to install any software, including modified operating systems, in any device is legislative overreach and is unlikely to meet the principles of reasonableness and proportionality," he said.
A convincing case for the new powers is needed, given their extreme nature, the potential risk to cybersecurity extending beyond Australia and the secrecy and penalty regimes.
"As the European Court of Human Rights said recently, while it's important that States are able to carry out secret surveillance to counter terrorism and other threats, going too far can also represent a threat to the liberty of citizens. Surveillance regimes have the potential to be abused, with serious consequences for individuals and society," the Special Rapporteur said.
The Special Rapporteur’s submission on the Assistance and Access Bill.
Prof. Joseph Cannataci (Malta) was appointed as the first Special Rapporteur on the right to privacy by the Human Rights Council in July 2015. Recently, his term was extended to 2021. He is an academic who has had a pioneering role in the development on data protection, privacy law and technology law. A UK Chartered Information Technology Professional & Fellow of the British Computer Society, he also continues to act as Expert Consultant to a number of international organisations.
The Special Rapporteurs are part of what is known as the Special Procedures of the Human Rights Council. Special Procedures, the largest body of independent experts in the UN Human Rights system, is the general name of the Council’s independent fact-finding and monitoring mechanisms that address either specific country situations or thematic issues in all parts of the world. Special Procedures experts work on a voluntary basis; they are not UN staff and do not receive a salary for their work. They are independent from any government or organisation and serve in their individual capacity.
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