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Australia Proposes New Encryption Legislation

In August 2018, the Government of Australia unveiled a new proposed bill that would grant the county’s national security and law enforcement agencies additional powers when confronting encrypted communications and devices. The text of the draft Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018 (the “Assistance and Access Bill” or the “Bill”) states that the purpose is “to secure critical assistance from the communications industry and enable law enforcement to effectively investigate serious crimes in the digital era.”

The Assistance and Access Bill, if enacted, could affect a wide range of service providers both in and outside of Australia.

Definition of “Designated Communications Provider”

The Assistance and Access Bill applies to “Designated Communications Providers” (“DCPs”) which the Bill defines to include foreign and domestic communications providers, device manufacturers, component manufacturers, application providers, traditional carriers, and carriage service providers. The Bill includes in its definition any corporation that develops, supplies, or updates “software that is capable of being installed on a computer, or other equipment, that is, or is likely to be, connected to a telecommunications network in Australia.” If this definition is maintained, the Bill will sweep in a wide range of technology providers.

A new framework for engaging domestic and international communications providers

The Assistance and Access Bill would grant certain Australian Government agencies new powers to secure assistance from companies in the communications supply chain, including from companies outside of Australia in certain situations. Specifically, the Bill would create three new legal mechanisms that would enable Australian Government agencies to secure support from DCPs:

  • Technical Assistance Request (TAR): Would serve as the legal basis for a DCP to provide voluntary assistance to certain government agencies for national security and law enforcement purposes.
  • Technical Assistance Notice (TAN): Would permit the Director-General of Security or the head of an interception agency to require a DCP to provide assistance that the company is already capable of providing, as long as the assistance is reasonable, proportionate, practicable, and technically feasible.
  • Technical Capability Notice (TCN): Would permit the Attorney-General to require a Designated Communications Provider to build a new capability that will enable the company to provide assistance to certain government agencies.

Next Steps

The Australian Government is reviewing public feedback on the draft Bill. (A recent consultation closed on September 10th.) The Government then plans to have the Bill introduced in Parliament by December 2018.

© 2020 Covington & Burling LLPNational Law Review, Volume VIII, Number 263

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About this Author

Jadzia Pierce, Covington, data and cybersecurity attorney
Associate

Jadzia Pierce is an associate in the firm’s Washington, DC office. She is a member of the Data Privacy and Cybersecurity and Communications and Media Practice Groups.

Before joining the firm, she was the Privacy, Surveillance, and Security Fellow at the Center for Democracy & Technology.

Representative Matters

  • Advises multinational companies on cyber and data security incident preparedness, including the development of incident response plans, conducting of security gap analyses, and determination of regulatory obligations and litigation...
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