The confronting reality of pervasive surveillance laws

When discussing the topic of government electronic surveillance, I often reflect on the time during a significant AFP Counter Terrorism investigation that we had cause to install a hidden camera in the bedroom of a terrorism suspect.

The surveillance device was crucial for the evidence it obtained, and ultimately assisted in bringing serious terrorism charges against the subject as he conducted conversations and other activities in that room that we had no other way to cover.

At one moment though, as a crowded operations room conducted their enquiries and managed their paperwork with the live stream playing on the big screen, the absurdity of the situation was not lost on me.

What was occurring at that moment was truly a paranoid schizophrenic’s worst nightmare. We, the government, were literally watching this guy as he slept … alone … in his bedroom.

But of course, he was a young man, sleeping was not all he did in his bedroom. During the course of the operation, we collectively had to turn our heads on countless occasions while the suspect engaged in activities that I will simply refer to as “irrelevant” to the investigation.

The reason why this moment is so interesting to me is that there are very few members of the public that are surprised that the police have the capability to carry out such pervasive surveillance; and considering the evidence resulted in the prosecution of a terrorism suspect, most are glad that they do.

It poses the question then as to why we find ourselves relatively unconcerned by the prospect of the government surveilling our most private moments in the sanctity of our homes, yet are almost universally anxious about the prospect of the government surveilling our lives in cyberspace.

The reasons behind this apparent inconsistency is layered, and there are possibly only some that can be remedied.

To start with, the fact police could install surveillance devices or tap our phones is a reality most of us were born into. It is not necessarily that we are at peace with it, but more so because our generation has never been asked if we would be willing to tolerate it. This state of affairs existed when we got here.

The requests to intercept our online communication, on the other hand, has been a recent one that requires the immediate support of our elected leaders in Parliament – as voters, we suddenly have agency over what access we want to grant the government, even if only within this new realm. Society is often reticent to surrender liberties it has so far enjoyed.

Another clue could be because of the difference in the manner we conduct ourselves online as opposed to our day-to-day life. The cloak of anonymity undoubtedly influences not just what we talk about, but who we talk to and how we talk about it. It could be as simple as the fact most people would be more embarrassed by what they say and do online than what they say and do in their homes or on a phone call.

The reality is, the internet has changed not just the way we communicate, but what we communicate. The sharing of explicit and intimate content is ubiquitous, as is the understandable concern that any of us could ever lose control of that content.

But perhaps the core to understanding the increased anxiety of government surveillance is the dissipating confidence that most have had that the government simply doesn’t care about them enough to bother surveilling them.

When confronted with the prospect that the government could place a surveillance camera in their home, most would argue that the scenario was implausible because they weren’t a “criminal”; how would the police ever get a warrant and why would they go to all that effort anyway?

The immediacy of online surveillance means there is no need for police to sneak into your home while you’re out or to pay someone to watch all your waking minutes. The interception of your online communication could theoretically be put into place with a few clicks of the mouse. This feels like a porous layer of administrative protection against the wandering eyes of a government with expanding national security interests and regularly reported integrity breaches.

The situation is so complex because the public interest in providing access to this medium is undeniable. It is a simple fact that paedophiles are emboldened to conduct their horrifying art with the knowledge their communication is encrypted.

The inconvenient reality is the means by which these criminals groom children and share child exploitation material is the same medium so many others use to conduct their perfectly legal and consensual intimate conversation they place their premium of privacy over. Does permitting the government the right to peer into one conversation threaten to permit it access to all?

To some extent the government has failed to articulate how the safeguards that exist for electronic surveillance are the same that we have relied upon for decades.

The controversial Assistance and Access Act clearly states that any information obtained from our encrypted communication must still be obtained under the corresponding thresholds that existed previously for non-encrypted information – in layman’s terms, they need to obtain the exact same warrants they would currently need to obtain if they wanted to tap your phone.

This means proving to a magistrate or other warrant issuing authority that they are investigating a serious criminal offence, that there will be evidence of that criminal offence in the information they’re trying to obtain, and that there was no other reasonable way of obtaining that information.

In essence, the rules the government is playing by haven’t changed … but the way we are living our life has. The Australian people are to some extent shifting the goal posts on the safeguards we want in place to protect our information, and this isn’t a criticism, it is our right.

The efforts by the government to legislate access to our online information isn’t a case of government encroachment on our private life, it has always been able to do this.

But we are witnessing a new border war, as our private life increasingly finds itself co-existing within a new environment populated by terrorists and sex offenders in a way it hasn’t in the past.

Expecting the old rules to seamlessly apply to the new world has resulted in public concern that is unusual for a famously compliant population. If a new Labor government is to continue with its predecessor’s aspirations to increase law enforcement coverage of cyberspace, it will need to develop new safeguards and oversights to recognise the changing environment.

Compromise, particularly regarding the freedoms we surrender in the name of security, is not a dirty word. But it is not unreasonable for us to demand that the way we are protected evolves at the same speed as the technology that threatens us.

Carrick Ryan is the nom de plume for a former counter-terrorism officer at the Australian Federal Police and current fraud investigator at a Big Four bank. You can follow Carrick on Facebook here and on Twitter here.

Clarification: A previous version of this story suggested the Administrative Appeals tribunal has a role in the issuing of warrants. This is not the case. Warrants are issued by certain individuals who have been nominated or appointed by the relevant minister to exercise warrant powers. While certain AAT members may be eligible for nomination or appointment to exercise warrant powers, the issue of warrants is a persona designata function, which is exercised in a personal capacity. It is not a function of the AAT.

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