Australia’s cybercrime investigators want more powers

Australia’s law enforcement agencies want more powers in cybercrime investigations so that “any person,” even though not a criminal suspect in a case, can be forced to provide critical information.

In a submission to a parliamentary cybercrime inquiry, the Australian Crime Commission (ACC) urges law enforcement agencies to make greater use of its “extraordinary powers” to summons not only suspects but anyone who holds information considered critical in an investigation. The coercive powers could be extended to IT managers or anyone who holds information such as an encryption key or password. Under the ACC powers a person loses their “right to silence” and is forced to engage in an interview or face severe penalties ranging from imprisonment and fines of up to A$20,000 (US$13,094).

Consultant and lecturer at the University of Technology’s Faculty of Law, Ajoy Ghosh, said the person does not need to be a suspect, or the owner of the computer or an employee of the owner of the computer.

Ghosh said these powers are not available to traditional police and the ACC’s submission is a return to the outcry that occurred during the drafting of the Cybercrime Act and the use of assistance warrants to investigate cybercrime suspects.

He said the difference here is that it goes beyond suspects or owners of suspect computers.

“Assistance warrants require someone to assist police by providing passwords or circumventing security systems to access data; civil libertarians have condemned the warrants as an Orwellian tool,” Ghosh said.

An ACC spokeswoman said the commission’s coercive powers have always been available to other police agencies but can only be used in investigations that fall under “serious or organized crime.”

The move puts cybercrime on the map of serious offences to come to the notice of the ACC which was formed in January this year replacing Australia’s National Crime Authority (NCA).

Looking to make use of the ACC’s broad-ranging powers for cybercrime investigations, South Australian (SA) Deputy Superintendent Tony Rankine said it will be of enormous benefit to the SA Police Force to gain information not available under state legislation.

However, Victorian Computer Crime Squad Detective Sergeant Greg Sevior said the powers would only be useful in the right circumstances and can see some advantages for state police bodies.

In another submission to the inquiry, the New South Wales (NSW) Police is urging the committee to consider procedures relating to court evidence. Ghosh said the police are seeking “payment of costs by the defence for unnecessary disputed evidence.”

“Handling electronic evidence can be a costly exercise when done properly and unless the evidence is collected, preserved and analyzed correctly, defence lawyers will be able to have it thrown out of court; but the police want to prevent defendants from critically examining their procedures and evidence,” he said.

“As lawyers are becoming more Internet-savvy they are realizing that the Achilles heel in cyber investigations is evidence and are using experts, such as myself, to coach the defence.

“They are trying to attack a suspect’s right to dispute evidence in court.”

The NSW Police was unavailable to comment on its submission, which was one of 25 submissions received by the parliamentary committee.