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Monday, 29 November 2004
Page: 86

Senator ELLISON (Minister for Justice and Customs) (5:52 PM) —The regime in relation to a telephone intercept warrant is very different. You are dealing with a different issue, because you are intercepting a live conversation—that is, a live communication as opposed to a stored communication. That raises the question: why do we have this difference? I refer to the definition of a stored communication. It excludes other communications that are stored on a highly transitory basis as an integral function of a technology used in its transmission. Email, SMS and MMS messages are examples of communications that may be momentarily queued or buffered as a result of network congestion. The exclusion ensures that a telecommunications interception warrant will continue to be required in order to carry out live or real time interception of email, SMS or MMS messages in transit.

I refer to that because, as I mentioned earlier, a stored communication is much like a letter; it is not a live communication. It is something that has been communicated and stored and, as such, it is distinguished from a conversation or even the communications I just pointed to, which are ongoing. The telephone intercept warrant involves a different process. I believe that it should not be incumbent on law enforcement to have to go through the same process for something which is not the equivalent of a telephone intercept.

Senator Brown —Why not?

Senator ELLISON —It is much like finding something in a house, such as a search warrant. Finding a piece of paper on a desk is much like finding a stored communication: you are not intercepting anything which is happening. The generator of the document has done his or her work: it has been generated and sent. It is much like a piece of paper on a desk. It is not the equivalent of intercepting a conversation which is ongoing or an SMS which is being transmitted. It is an entirely different piece of evidence and it requires an entirely different form of action by law enforcement. I will give you an example. If, after obtaining a search warrant, law enforcement were to enter premises and found a computer with an indication of stored communication on its screen that was relevant to the investigation, the law enforcement authority would then have to get a telephone intercept warrant to carry out a search of that computer.

If it is stored and it is there, it is the equivalent of a document sitting on the desk. We believe that, in applying the principles of law across the board, it should be treated as such and a normal warrant would suffice. However, where there is a conversation ongoing or where someone is transmitting something over a computer and they are in the act of doing it, that requires all the attendant steps for a telephone intercept. We believe that you have to work backwards, if you like—that is, to look at the sort of thing that you are picking up with a warrant and then work out how you go about the interception. You cannot class stored communication as a telephone intercept.