What is a warrant, and how does it allow the government to intercept communications?

In Plain English

A warrant is an official permission slip issued by a judge or other authorized person that allows law enforcement or other government agencies to do something that would otherwise be illegal, like intercepting your phone calls or accessing your computer data.

Specifically regarding communication interception, a warrant permits agencies like ASIO (Australian Security Intelligence Organisation) or law enforcement to access the content of your communications (like phone calls or emails) or related information (like call logs), which would normally be private. There are various types of warrants for different situations, like national security or criminal investigations. Each type has specific rules about when and how it can be used, who can be targeted, and how long it lasts.

Detailed explanation

A warrant, in the context of Australian legislation, is a legal instrument authorizing certain actions by government agencies, primarily in the realms of law enforcement and national security. Several Acts outline the specifics of warrants, including their issuance, scope, and limitations.

The Telecommunications (Interception and Access) Act 1979 provides a framework for warrants related to telecommunications. It outlines circumstances under which the Attorney-General or other authorized persons can issue warrants for intercepting communications. For instance:

  • ASIO warrants: The Director-General of Security can request warrants to intercept telecommunications for the purpose of collecting foreign intelligence, as detailed in sections 11A, 11B, and 11C. These warrants have specific requirements, such as the need for the Attorney-General to be satisfied that collecting such intelligence is in the interest of Australia's national security, foreign relations, or economic well-being.
  • Citizen/Permanent Resident limitations: Section 11D(5) states that the Director-General must not request a warrant to collect information concerning an Australian citizen or permanent resident unless they reasonably suspect the person is acting for, or on behalf of, a foreign power.
  • Duration: Section 11D(2) specifies that a warrant cannot exceed 6 months.

The Surveillance Devices Act 2004 covers warrants for accessing computer data.

  • Computer Access Warrants: Section 27A outlines the application process for computer access warrants, which can be sought if a law enforcement officer suspects that relevant offenses have been, are being, or are likely to be committed, and that accessing data held in a computer is necessary to obtain evidence.
  • Scope of Authority: Section 27E details what a computer access warrant authorizes, including entering premises, using telecommunications facilities, and adding, copying, deleting, or altering data in the target computer.
  • Duration: Section 27KP(2) states that a warrant may only be issued for a period of no more than 90 days.

The Australian Security Intelligence Organisation Act 1979 also allows for warrants.

  • Access to Computer Data: Section 25 allows the Attorney-General to issue warrants authorizing ASIO to access data held in a computer if there are reasonable grounds for believing that such access will substantially assist the collection of intelligence in respect of a matter that is important in relation to security.
  • Inspection of Postal Articles: Section 27 allows the Attorney-General to issue warrants to allow ASIO to inspect postal articles under certain conditions.

The Telecommunications Act 1992 (NI) outlines warrants for interception of communication and access to private telecommunications information for the Police Force.

  • Application for Warrants: Section 50 states that a member of the Police Force may apply to a Judge for a warrant in respect of the interception of a communication or access to private telecommunications information.
  • Issue of Warrants: Section 51 specifies the conditions under which a Judge may issue a warrant, including compliance with application procedures, reasonable grounds for suspecting a person is using a telecommunications service, and the likelihood that information obtained would assist in investigating an eligible offense.
  • Duration: Section 52(3) states that a warrant must specify a period of up to 90 days for which it is to be in force.

The Proceeds of Crime Act 2002 outlines warrants for seizing digital assets.

  • Authority to Seize Digital Assets: Section 228A(1) states that a search warrant authorizes the executing officer or a person assisting to seize a digital asset if certain conditions are met, including reasonable suspicion that the digital asset is tainted property or evidential material.

These warrants generally authorize agencies to "intercept" communications, which, in practical terms, means:

  • Accessing the content of communications: This includes listening to phone calls, reading emails, or viewing other forms of electronic communication.
  • Obtaining related information: This can include data about the source and destination of communications (e.g., phone numbers called, email addresses), the time and duration of communications, and the location of devices used for communication.