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Transcript of interview with Kieran Gilbert: SKY News: 14 July 2017: encryption



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SENATOR THE HON GEORGE BRANDIS QC

ATTORNEY-GENERAL

LEADER OF THE GOVERNMENT IN THE SENATE

TRANSCRIPT - Interview with Kieran Gilbert - SKY News

14 July 2017

Topics: Encryption

E&OE…………………………………………………………………………………………

KIERAN GILBERT: Minister, thanks very much for your time. Attorney, can you talk us through what you’re hoping to do here? Is it basically to align the Government’s approach and its legislation to the tech companies as you already have in place for the telcos in terms of the traditional phone communication?

ATTORNEY-GENERAL: Well broadly speaking, that’s right, Kieran. Governments and law enforcement and intelligence agencies have always had the lawful capacity to intercept information, under warrant of course, where that is necessary for criminal investigations or for criminal prosecutions. And there has always been an obligation on citizens, including corporate citizens, to assist police, in law enforcement matters. So all we are seeking to do is to apply existing legal principle to a new technology. So this is, in a sense, a commonplace proposition, but because of the development of encryption technology in the last few years, there are communications which previously would have been as a matter of course, been able to be intercepted under warrant by intelligence and law enforcement, which are now beyond them. So what we’re asking the ISPs and the device makers to do is to accept the same obligation that already applies under existing law, also applies to the new technologies.

KIERAN GILBERT: There have been examples where they haven’t done that, like the San Bernardino terrorists that Apple refused to hand over technology to unlock the terrorist’s phone and these companies that you refer to, they’re some of the biggest in the world. Are you expecting any push back for the Australian legislation?

ATTORNEY-GENERAL: Look Kieran, we want to work collaboratively with them. These are important companies of course, they’re extremely powerful companies, as you say some of the largest companies in the world. So they of all understand the nature of their social obligation, and it’s also a legal obligation. As I said before, we are asking nothing more of them than to accept that the same legal principles that applied to the old technologies, must apply to the new technologies.

KIERAN GILBERT: So you don’t necessarily want them to divulge how they go about things or the technology that underpins their platforms? You want them to provide and cooperate with Government in providing access where warrants are in place?

ATTORNEY-GENERAL: Correct and I mean I’m glad you referenced the San Bernardino case in California last year. That was a case where it was necessary to crack an Apple phone in order to pursue an important lead in a counter terrorism investigation and there is no justification whatsoever in refusing to cooperate with lawful authorities, where what they are trying to do is to protect the public from terrorism. Now as the Prime Minister has said many times, and I couldn’t agree more, the internet is not an ungoverned space. People lead a large proportion of their lives online today and the rule of law has to apply as much online as it does in everyday life.

KIERAN GILBERT: In terms of just how much this is encroaching upon the traditional surveillance of our security agencies, it’s quite an extraordinary number, 90 per cent of ASIO priority cases have been impacted, hampered by encryption technology. It’s a huge number.

ATTORNEY-GENERAL: Correct. It’s a rapidly evolving phenomenon, which as I’ve said before, represents the greatest degradation of our intelligence capability in modern times. Let me give you an example. In 2013, about three per cent of ASIO’s priority investigations involved at one point or another, trying to access encrypted communications. Today, it’s more than 50 per cent and with the ubiquity of encryption technology in messaging services, then I think we have to face the situation, that this will be a universal phenomenon within a very short time. And the point I make Kieran is this, if it was legally, morally, ethically appropriate for unencrypted private communications to be accessed by lawful means and under warrant before in order to keep the community safe, why has everything changed because a new encryption technology has been developed. Nothing has changed. Communications do have to be accessed by intelligence and law enforcement in certain defined circumstances and under warrant in order to investigate and protect us against terrorism planning, to investigate and break up organised crime gangs, to investigate and break up paedophile rings and it’s not good enough, frankly, for anyone to hide behind the fact that there is a new technology that enables these communications to be encrypted to say I’m sorry, we’re not prepared to cooperate with you.

KIERAN GILBERT: But you know that this is very, when we’ve discussed it, these are powerful companies, it’s some of the most popular platforms, social media platforms, that there are, so what do you say to our viewers this morning in terms of reassurance that this is not about mass surveillance, that this won’t expose people’s everyday private communications, there is no harm to the broader community?

ATTORNEY-GENERAL: It’s got nothing to do with mass surveillance. It is not mass surveillance and it’s not going to make their everyday dealings in social media insecure. The fact is that information security is a very high value. It is an economic benefit. It matters to people and the Government is determined to protect it. But having said that, there is also an important value to be served in protecting national security and as I said in answer to your earlier question, it has been accepted for decades that in certain defined circumstances, law enforcement and intelligence agencies on a warranted basis should be able to access communications in order to keep the community safe. Now let me give you a real time example, Kieran. In 2015, the authorities busted a plot to conduct a mass casualty terrorist attack at the Anzac Day memorial service in Melbourne. It was one of the 12 terrorist attacks

that we have interdicted in Australia since September 2014. We now know that the planning and preparation for what would have been a mass casualty terrorist attack at the shrine, the Anzac shrine in Melbourne, was being conducted by using encrypted messaging. Now I think the Australian people would accept that as long as they can be reassured, as they can be assured, that we are only seeking to access these communications for the purpose of preventing terrorist crime or preventing and busting criminal rings or paedophile rings, then they would accept that this is no different from the existing law that enables for example, telephone calls or emails to be surveilled by the authorities on warrant for proper reasons. KIERAN GILBERT: Attorney, we’re almost out of time but just quickly though, if you get the cooperation from the tech giants, how soon can we have these new protocols in place?

ATTORNEY-GENERAL: Well I’m glad you used the word protocols because that’s what we want. As our first preference, and this is something that Mr Turnbull discussed at the G20 and a week before that I discussed at the Five Eyes intelligence conference in Ottawa, we want cooperation from industry and that cooperation will be embodied, if it’s forthcoming, in a series of understandings or protocols. But as a default position, very much as a second best position, we are proposing to legislate as the British have done, as the New Zealanders have done, to impose a statutory obligation of cooperation if that cooperation is not forthcoming voluntarily, and I’ll be introducing that legislation into the Parliament before the end of this year.

KIERAN GILBERT: Attorney-General, thanks for your time, appreciate it.

ATTORNEY-GENERAL: Pleasure Kieran.

ENDS