Australia’s encryption-busting laws were used by federal police for the first time last year to force at least one undisclosed tech company to provide assistance, in an escalation of its crackdown on encrypted messages.
The Australian Federal Police issued its first two technical assistance notices (TANs) in 2023-24, the latest Telecommunication (Interception and Access) Act annual report reveals.
It comes a full five years after the compulsory power became available to law enforcement and national security agencies through controversial the Assistance and Access Act in 2018.
Only NSW Police have previously used the coercive powers, which can compel tech companies to “give assistance where they already have the technical capability to do so”.
Under the Assistance and Access Act, which was rushed through parliament at the 11-th hour, authorities can issue both voluntary requests and compulsory orders to investigate serious crime or national security threats.
Technical assistance requests (TARs) — the lesser of the three powers — are used to ask tech companies to provide assistance, while technical capability notices (TCNs) compel a company to provide assistance or build “limited capabilities”.
In addition to the two TANs, new figures released by the Attorney-General’s Department on Thursday reveal TARs were issued 60 times in 2023-24, down from 66 the year prior, but still double the number in 2021-22.
None of the request were used to investigate terrorism offences for the sixth-straight year, despite the former Coalition government using the possibility of an attack over the 2018-19 Summer break to rush passage of the laws.
NSW Police remains the biggest user of technical assistance requests, issuing 47 requests mostly for homicide and related offences (24) and illicit drug offences (9) in 2023-24.
A further five technical assistance requests were made by the Australian Criminal Intelligence Agency for “other serious Australian offences”, while state policing agencies WA Police and Victoria Police issued a total of 8.
The two TANs issued by the AFP, build on the one issued by NSW Police during the course of a murder investigation in 2020-21. The newly released report covering 2023-24 does not state what the AFP used its TCNs for.
No technical capability notices – which compel a company to provide assistance or build “limited capabilities” and was a key sticking point for industry – have been issued to date.
In September, ASIO director-general Mike Burgess said he was considering invoking powers to force companies that build encrypted messaging apps to comply with warrants and unlock chats.
It follows what he says are lawful requests for access to communication that have gone unanswered by tech companies, resulting in a series of closed door conversations by ASIO.
Shortly after his comments, a parliamentary committee recommended greater power for law enforcement agencies to access encrypted messages in national security incidents.
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