NSW Police issues first coercive notice under encryption-busting powers

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NSW Police issues first coercive notice under encryption-busting powers

As assistance requests continue to grow.

Coercive powers under Australia’s controversial encryption-busting laws were used for the first time by law enforcement last financial year, with NSW Police becoming the first to issue a technical assistance notice (TAN).

The latest Telecommunications (Interception and Access) Act annual report, released on Tuesday, reveals the force issued the TAN to an unnamed service provider during the course of a murder investigation in 2020-21.

“One TAN was given by NSW Police. This was the first TAN given to a designated communications provider since the commencement of the framework,” the report [pdf] states.

TANs give policing agencies and the Australian Criminal Intelligence Commission (ACIC) the ability to “compel providers to give assistance where they already have the technical capability to do so”.

The power was introduced alongside two other powers – technical capability notices (TCNs) and technical assistance requests (TARs) – under the Assistance and Access Act, which passed parliament at the eleventh hour in December 2018.

Along with TCNs, which allow authorities to require service providers to build “limited capabilities” on law enforcement and national security grounds, it is one of the most coercive powers available to authorities.

Technical assistance requests (TARs), meanwhile, are a “voluntary assistance” request issued to service providers to provide data or assistance during the course of an investigation.

According to the report, the TAN given by NSW Police – which was reviewed by the Australian Federal Police (AFP) commissioner before it was issued – related to a homicide offence.

No other information about the notice is provided in the report, including on the service provider that was issued with the TAN or whether any data was handed over to the force as a result.

The report also reveals that 25 TARs were issued by policing agencies and the ACIC in 2020-2021, more than double the number issued in 2019-20 and almost four times that of 2018-19.

NSW Police was the biggest users of TARs, with 16 requests issued relating to organised offences (6), homicide (5), illicit drug offences (3), sexual assault (1) and acts intended to cause injury (1).

Victoria Police was the only other state policing agency to use the power in 2020-21, issuing a total of five TARs altogether: three for illicit drug offences and two for homicide offcences.

At a federal level, the AFP issued one each for cybercrime offences and illicit drug offences, while the ACIC issued two TARs for organised offences.

None of the state or federal agencies used TANs or TARs for “terrorism offences” for a third year in a row, despite the federal government using this reasoning to rush the passage of the laws in 2018.

However, it is not clear if any of the powers were used by the Australian Signals Directorate (ASD), Australian Security Intelligence Organisation (ASIO) and Australian Secret Intelligence Services (ASIS) in 2020-21, as their use is not detailed in the report.

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