[WikiLeaks] Australia's ASIO gets new powers to spy on Wikileaks

Tue May 17 22:48:37 CDT 2011

1. New powers mean ASIO could spy on WikiLeaksCrikey Canberra correspondent
Bernard Keane writes:<http://redirect.cmailer.com.au/LinkRedirector.aspx?clid=c58308d5-59f8-4dd1-a157-6772ce337958&rid=d2915378-721e-41d3-a3c5-ddee8e3dc45a>
ANONYMOUS<http://redirect.cmailer.com.au/LinkRedirector.aspx?clid=1b4e8a8d-b2f3-4a06-a863-4aa78bcfe482&rid=d2915378-721e-41d3-a3c5-ddee8e3dc45a>
, ASIO<http://redirect.cmailer.com.au/LinkRedirector.aspx?clid=db728aa3-c09d-4c98-9af1-b92d23e448b2&rid=d2915378-721e-41d3-a3c5-ddee8e3dc45a>
, ATTORNEY GENERAL<http://redirect.cmailer.com.au/LinkRedirector.aspx?clid=a3ef1c91-4fd0-4a83-a45c-01d80460eea0&rid=d2915378-721e-41d3-a3c5-ddee8e3dc45a>
, CASTAN CENTRE FOR HUMAN
RIGHTS<http://redirect.cmailer.com.au/LinkRedirector.aspx?clid=904ec4da-3c23-49aa-8419-21a749c4ba25&rid=d2915378-721e-41d3-a3c5-ddee8e3dc45a>
, INTELLIGENCE<http://redirect.cmailer.com.au/LinkRedirector.aspx?clid=100fe2ed-4eee-4802-a29b-142c1f1870f1&rid=d2915378-721e-41d3-a3c5-ddee8e3dc45a>
, LAW COUNCIL<http://redirect.cmailer.com.au/LinkRedirector.aspx?clid=c547c108-e984-400a-9999-3a6531a9ecba&rid=d2915378-721e-41d3-a3c5-ddee8e3dc45a>
, LEGISLATION<http://redirect.cmailer.com.au/LinkRedirector.aspx?clid=fd716d23-57d3-4fe9-b5f8-335170f85075&rid=d2915378-721e-41d3-a3c5-ddee8e3dc45a>
, WIKILEAKS<http://redirect.cmailer.com.au/LinkRedirector.aspx?clid=265801f5-6c0b-48cf-8b02-b1a9e14b7079&rid=d2915378-721e-41d3-a3c5-ddee8e3dc45a>

A new bill before parliament will significantly increase ASIO's powers to
conduct offshore surveillance and extend surveillance to organisations such
as WikiLeaks, just months after legislation widened ASIO's power to share
the results of its spying.

The *Intelligence Services Legislation Amendment Bill 2011* was introduced
into the House of Representatives in March without debate and is currently
the subject of an inquiry by the Senate Legal and Constitutional Affairs
Legislation Committee. The inquiry deadline has been brought forward from
September to June. So far there have been just six
submissions<http://redirect.cmailer.com.au/LinkRedirector.aspx?clid=f7e76de8-b619-454d-a42e-10237eda8a1d&rid=d2915378-721e-41d3-a3c5-ddee8e3dc45a>
(including
ones from the Attorney-General's Department and Queensland Police
predictably supporting the bill) -- reflecting the small number of
stakeholders who are across the significance of these sorts of changes to
legislation affecting intelligence services.

In March, ASIO's powers to share information from wiretaps and computer
access with other agencies were significantly expanded by the
*Telecommunications
Interception and Intelligence Services Legislation Amendment Act*, which
sailed through Parliament with the support of the government and the
Opposition, to the fury of the Greens.

The new bill goes further and expands ASIO's power to undertake surveillance
activity offshore in two keys areas:

   - Currently the collection of foreign intelligence is limited to when the
   Attorney-General "is satisfied that the collection of that foreign
   intelligence is important in relation to the defence of the Commonwealth or
   to the conduct of the Commonwealth’s international affairs". Under the bill,
   those criteria will be expanded to "the interests of Australia’s national
   security, Australia’s foreign relations or Australia’s national economic
   well-being"; and
   - "Foreign intelligence" is redefined to relate to "intelligence about
   the capabilities, intentions or activities of people or organisations
   outside Australia". Under current legislation, it is limited to
   "intelligence relating to the capabilities, intentions or activities of a
   foreign power". Similarly, the concept of a "foreign power" has been
   redefined -- currently it applies to "a foreign government, an entity that
   is directed or controlled by a foreign government or governments, or a
   foreign political organisation". Under the bill, it will become "people,
   organisations and governments outside Australia".

The new definitions free ASIO up to undertake surveillance offshore in
relation to Australia's economic interests - for example, the negotiation of
BHP and Rio's new iron ore contracts in China. But it also enables ASIO to
spy on people and organisations overseas that do not fit the current
definition of "foreign powers".

As Dr Patrick Emerton of Monash's Castan Centre for Human Rights Law points
out in the centre's
ubmission<http://redirect.cmailer.com.au/LinkRedirector.aspx?clid=8d4e8076-552c-457d-9ca2-ed3865b87c7f&rid=d2915378-721e-41d3-a3c5-ddee8e3dc45a>,
the current definitions in the act already allow for "non-state actors" (for
example, who might be engaged in terrorist activities aimed at Australia) to
be targeted -- "most non-state organisations that threaten the security of
Australia would be captured by the existing notion of foreign political
organisation". The expansion, however, would enable Julian Assange and
WikiLeaks to be targeted by ASIO. As Emerton says in the submission:

"Currently, information about WikiLeaks probably would not constitute
foreign intelligence -- because WikiLeaks is (arguably) not a foreign
political organisation, and its activities do not threaten Australia’s
security (as defined in section 4 of the *Australian Security Intelligence
Organisation Act 1979* (Cth)). But WikiLeaks is an organisation, and Mr
Assange is a person, outside Australia, and their activities evidently do
have implications for Australia’s foreign relations. This example shows how
the notion of "person or organisation outside Australia", combined with the
notion of "Australia’s foreign relations", very considerably expands the
scope of ASIO’s potential activities."

Other non-political groupings -- in the strict sense -- such as Anonymous
would also be legitimate targets under the revised definitions. One
Anonymous operation brought down the www.aph.gov.au site and two Australians
were subsequently convicted for participating.

As the Law Council explains in its
submission<http://redirect.cmailer.com.au/LinkRedirector.aspx?clid=9ee37055-d66b-406b-9c3a-8338287d0824&rid=d2915378-721e-41d3-a3c5-ddee8e3dc45a>,
the current threshold test for spying on Australians domestically is
significantly more stringent than that for overseas, and must relate to
matters that are important in relation to security, which is then defined
against several criteria. The amendments would enable much easier
surveillance of Australians who go overseas and participate in political
action.

Potentially, they may also enable surveillance of Australians engaged in
action online, even if they are still in Australia, as long as it relates to
"the capabilities, intentions or activities of people or organisations
outside Australia". For example, Australians participating in Anonymous
operations, or perhaps even supporting WikiLeaks or other whistleblower
organisations online, may now be legal targets of ASIO surveillance even
though they are in Australia and not doing anything that relates to
Australia's security.

The bill also makes life easier for ASIO by expanding the remit of computer
search warrants to include any information on the computer during the life
of the warrant, not just when it was issued; ensuring ASIO can share
employment-related information about people without them ever being able to
access that information and clarifying ASIO's immunities from Commonwealth
and state civil and criminal laws.

"The government brings forward a bill expanding ASIO's powers once or twice
a year, consistent with the unrestrained funding and staffing increases the
agency has received," Greens Senator Scott Ludlam told *Crikey*. "This
current bill is the most ambitious we’ve seen. It will allow our clandestine
intelligence agency to pursue covert campaigns against organisations like
WikiLeaks or get involved in commercial espionage, presumably on behalf of
Australian exporters."

One of the ironies of national security legislation, of course, is that the
Opposition, which is usually to be found instinctively saying "no" to
anything proposed by Labor, disappears on the issue, ensuring the passage of
these bills. "The government won’t need to justify such extraordinary
overreach," said Ludlam. "Because they know the opposition will vote for
anything with 'national security' in the title. I think it’s a profoundly
dangerous and unnecessary expansion of ASIO’s powers."
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