At the core of the controversy involving WhatsApp and the government over privacy issues is encrypted communication. The government cites national security in terms of pre-empting potential threats by intercepting encrypted messages.
Another argument with the government is disinformation, a very easy tool in the hands of country’s adversaries to sow seeds of rebellion, promote lack of trust in government and, finally, create chaos in a system. That’s the reason five countries – the US, UK Australia, New Zealand and Canada – are in favour of similar IT rules that give power to governments to intercept encrypted messages.
However, such interception can also give rise to arbitrary interference in private, and at times, confidential, communication involving individuals who could be critical of governments. That’s the argument WhatsApp takes underlining the prospects of silencing dissent.
While protecting online privacy, countries also stress the need to keep the law-enforcers a step ahead of those involved in crimes, or terrorist activities.
Here’s how the five nations are working on a system to balance things vis-à-vis encrypted platforms:
Australia: The country in 2018 passed the Telecommunications and Other Legislation Amendment (Assistance and Access) Act (TOLA Act). The legislation included amendments to the Telecommunications Act 1997, granting new powers for law enforcement and intelligence agencies to obtain information and industry assistance from Designated Communications Providers (Providers).
The Australian government said over 95 per cent of the Australian Security Intelligence Organization (ASIO) most dangerous counter-terrorism targets use encrypted communications. Encryption impacts intelligence coverage in nine out of ASIO’s 10 priority cases.
The TOLA Act introduced three types of industry assistance powers, differing in their coercive nature – Technical Assistance Request, Technical Assistance Notice and Technical Capability Notice. Broadly applied, a request or notice can be issued to a provider, which includes any company, business or person who contributes to the communications supply chain in Australia. A website owner, for example, could be bound by the TOLA Act. Non-compliance may result in civil penalties of approximately Australian $10 million for a corporation and $50,000 for an individual.
The Australian government reportedly used ‘encryption busting technologies’ 11 times in drug and robbery-related cases since TOLA came into existence.
US Lawful Access to Encrypted Data Bill: It has not been cleared as yet into a law. It would require tech companies to assist law enforcement in executing search warrants that seek encrypted data. The bill would apply to law enforcement efforts to obtain data at rest as well as data in motion. It would also apply to both criminal and national security legal processes.
The Bill would establish a “prize competition” to “incentivize and encourage research and innovation into solutions providing law enforcement access to encrypted data pursuant to legal process.” The bill was introduced on June 23, 2020, and referred to the Senate Judiciary Committee.
Five countries’ communiqué on encryption 2019: The Home Affairs, Interior, Security and Immigration Ministers of Australia, Canada, New Zealand, United Kingdom and the United States of America came together in London, on July 29-30, 2019. They affirmed their determination to promote their shared values and protect their nations from the existing and emerging security threats faced in “our communities, at our borders, or in the cyber space”.
They said: “We are concerned where companies deliberately design their systems in a way that precludes any form of access to content, even in cases of the most serious crimes. This approach puts citizens and society at risk by severely eroding a company’s ability to identify and respond to the more harmful illegal content such as child sexual exploitation, terrorists and extremist material and foreign adversaries’ attempts to undermine democratic values and institutions, as well as law enforcement agencies’ ability to investigate serious crimes.”