On 14 August 2018, the Minister for Law Enforcement and Cyber Security released the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018 (Draft Bill) to address challenges to law enforcement and national security posed by communications technology. The Draft Bill aims to assist law enforcement by providing a legislative framework to enable greater access to encrypted data.

The key implications of the Draft Bill are:

  • broader obligations for 'designated communication providers' (DCPs) to assist law enforcement with access to communications (DCPs include carriers, carriage service providers, device and component manufacturers, application and software providers)  
  • computer access warrants allowing agencies to covertly search and obtain evidence directly from devices  
  • stronger law enforcement powers to access data via search and seizure warrants.

If passed, DCPs will be substantially impacted by these new measures. The Australian Security Intelligence Organisation will be able to request voluntary assistance from DCPs, and if unwilling, DCPs may be compelled to assist within their existing capabilities via a technical assistance notice. The Attorney-General may also require that DCPs build a new capability into their technology where such request is reasonable, proportionate, practicable and technically feasible. This may be costly to DCPs and affect consumer relationships given the potential privacy implications.

The Draft Bill does however explicitly state that the new assistance powers cannot compel DCPs to build weaknesses into their products. The Draft Bill also provides important limitations and safeguards to protect privacy and cyber security.

The Draft Bill can be found here, and the Explanatory Memorandum can be accessed here. Baker McKenzie's commentary on the Bill here.

Following a consultation process which closed on 10 September some key changes were made to the existing Exposure Draft of the Bill and we have summarized these in our latest alert here.