NSW Police Gifted Draconian Search Powers Relating to Encrypted Devices

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By Paul Gregoire and Ugur Nedim

The Perrottet government, last Thursday, passed a new encryption-busting bill as part of an ongoing drive by the authorities to get around systems that encode our online communications to keep them out of the view of prying eyes that most often seem to be government and law enforcement.

Passed on 13 October, the Dedicated Encrypted Criminal Communication Device Prohibition Orders Bill 2022 establishes a regime that criminalises possession of devices converted to establish direct lines of communications between parties that can’t be monitored by regular surveillance methods.

“This bill introduces world-leading reforms to deter the use of dedicated encrypted criminal communication devices and give our law enforcement officers the tools to take action when they identify them,” said NSW police minister Paul Toole in his second reading speech on the bill.

And he underscored that “importantly, we are not talking about widely available encryption apps, such as WhatsApp or Signal, that are legally used by many of us on a regular basis”.

So, by his reckoning, these laws have been drafted to apply to, say, a network of drug traffickers who are involved in a multi-million dollar methamphetamine scheme and are using an encrypted app to avoid the detection of authorities, especially as one of them is related to a high-up minister.

But like all the measures the authorities have taken to bust through online privacy, the dedicated encrypted criminal communication device (DECCD) regime carries implications for the entire NSW constituency, as anyone’s mobile device can be accessed with court approval on mere suspicion.

The access regime

The DECCD Bill has created the DECCD Act, and it has made amendments to the Crimes Act 1900 (NSW) and the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (the LEPRA).

Under new part 5A of the LEPRA, police officers, who suspect a person is using a mobile device solely for criminal purposes, can apply to a magistrate for a DECCD access order, which requires the subject of the order to provide any necessary information to open the device for police inspection.

The law requires that on gaining that access into a suspect’s device, an officer is constrained to only examine such data contained on it that relates to whether it is a DECCD.

And not providing police access to a device is a gaolable offence of up to 5 years inside, under new section 80O of the LEPRA.

While soon-to-be enacted section 192P of the Crimes Act contains the offence of possession of a dedicated encrypted criminal communication device for certain purposes, which requires that a person is in possession of a DECCD, and it’s suspected they’ve used it for serious criminal activity.

This offence can see a person thrown in prison for up to 3 years.

And what makes a device a DECCD is defined in section 192O of the Crimes Act, which stipulates that its “a mobile electronic device” that’s designed to carry out criminal activity and avoid detection. The device’s factory settings have to have been altered, and encryption is being used.

But installing most apps changes a phone’s original settings. And the encryption busting laws Peter Dutton passed when he was home affairs minister have already made apps like WhatsApp less secure, so it seems NSW police are cracking down on newly developed non-commercial apps.

The prohibition regime

But the legislation gets even more sinister from there. Under section 9 the newly created DECCD Act, a police officer, with the approval of a senior officer, may apply to an authorised magistrate for a DECCD prohibition order against an eligible person they consider is likely to use such a device.

An eligible person is someone who has been convicted of a serious criminal offence and is over the age of 18. There are a range of crimes constituting serious offences, including being a member of a criminal network, money laundering, drug crimes and those involving firearms.

The subject of a DECCD prohibition order is then on the receiving end of some of the most extreme police search powers around, and, an officer can decide to apply these powers, without a warrant, at any time to determine whether the individual is possession of such a device.

Contained in section 5 of the Act, these powers include being stopped, searched and detained, having their premises entered and searched, which can involve their residence, any place suspected to be owned, controlled or managed by them, or one suspected as being used unlawfully.

The same powers can be applied to the subject’s vehicles, when they’re being driven by them or are under their control, if they’re parked in the area of a premises they own or parked in a shared area if officers suspect the vehicle is being used for unlawful purposes.

NSW police can also require the individual to provide access to a computer located during a search or that’s been seized if the officers reasonably suspect it could be a DECCD.

And these DECCD prohibition orders, which allow for the unmitigated police harassment of an individual who’s already served their court ordered time for the crime of which they’ve been convicted, must apply for a least six months but for no more than two years.

In the public interest

Whilst these draconian powers might be hard to conceive of, these types of laws are based upon pre-existing ones. Specifically, the drug supply prohibition order regime, which in turn, mimicked firearm prohibition orders.

The drug prohibition order scheme, which is still in its two year pilot stage, permits police the same powers to harass someone, who’s been convicted of a serious drug crime within the last 10 years, while the firearm prohibition orders, have been operating in a similar manner since 2013.

Indeed, the firearm prohibition order scheme had been operating with the requirement of a warrant since 1973.

But, after it was amended to become warrantless in 2013, the NSW Ombudsman found that 642 searches were carried out, with no guns found, in the first 10 months of the altered scheme, compared with the previous 62 orders granted over the previous 40 year period.

So, there’s a disturbing pattern developing here. And the NSW Government seems to be well aware that the community might be questioning the validity of such laws, as it released a public interest statement to accompany the DECCD legislation, which is certainly not the normal procedure.

The statement asserts that DECCDs are becoming of increasing concern as their use is escalating, which is leading to heightened rates of crime, and the laws set out in legislation, like the Surveillance Devices Act 2007 (NSW), aren’t effective in combating these new means of communication.

“The combination of the DECCD offence and prohibition order scheme adopted in the bill will ensure the police have appropriate powers to deter the use of these devices in NSW and disrupt the use of these devices by individuals at a high risk of using DECCDs for organised crime” the statement reads.

The new laws are set to kick in on 1 February next year. And the fact that the government released its statement to accompany the legislation on the parliament website shows that even it is aware the public is growing weary of the ever-increasing powers the police are being gifted.

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