The ethical dilemma of online surveillance

Author: Kearly Schirrman, Australian Crisis Simulation Summit

In the digital age, telecommunications have become part of our everyday lives. They play a central role in our communication with others, development of our services and integration of policies and laws. But this has simultaneously inspired their misuse, visible in issues like the rise of online extremism, cyber-attacks and coordination of transnational drug dealing.

Legislation has been passed in recent years to surveil individuals’ use of telecommunications to prevent this kind of criminal activity and ensure that telecommunications continue to be used in a civil and safe manner. This includes the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018 and the more recent Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020. Both Bills essentially provide Australian law enforcement and security agencies greater powers to break encrypted telecommunications.

The recent Operation Iron Side exemplifies one of the ways in which wider surveillance powers have supported Australian law enforcement as well as international law enforcement agencies to protect individuals against organised crime and drug dealing via telecommunication technology. Operation Iron Side involved an encrypted communications platform covertly run by the Australian Federal Police force, which could decrypt messages sent among organised crime groups.

As much as this operation was a large success for law enforcement and security agencies, it shows to the individual that very little is private — their privacy is in fact highly vulnerable under Australia’s existing surveillance powers. 

So allowing government access to individuals encrypted telecommunications raises many ethical challenges surrounding privacy. Encryption plays a critical role in democratic societies to maintain the individual right to privacy. In 2016, the United Nations Human Rights Council formally advised the importance of encryption, particularly in light of the freedoms of journalists:

In the digital age, encryption and anonymity tools have become vital for many journalists to exercise freely their work and their enjoyment of human rights, in particular their rights to freedom of expression and to privacy, including to secure their communications and to protect the confidentiality of their sources, and calls upon States not to interfere with the use of such technologies, with any restrictions thereon complying with States’ obligations under international human rights law.

It has been recognised that Australia does not currently have a comprehensive enforceable human rights protection at a federal level. Comparatively, those in the United States have constitutional rights and in the United Kingdom a legislated bill of rights protects individual privacy. Some scholars argue that this makes Australia a weak link amongst its international allies, particularly within the Five Eyes alliance.

It is suggested that Australia’s position in the Five Eyes alliance affords a legal possibility for measures which may be legally impossible in other jurisdictions. So, it is important for our policymakers to recognise the consequences of this ethical problem and to what extent it could affect the integrity of the Five Eyes alliance.

Why should this be prioritised today? Our policymakers need to consider the consequences and intentions of their surveillance legislation for the sake of individual and national security. As a democratic nation, it is the government’s responsibility to ensure individuals’ right to privacy is protected and maintained. And as technology and telecommunication platforms continue to emerge and develop, so too will these ethical challenges. Not only are individuals increasingly becoming more vulnerable to criminal activity associated with telecommunications, but they are also becoming vulnerable to the government’s access to their encrypted telecommunications.

Our national security interests ultimately conflict with our national surveillance objectives. Although Australia’s surveillance powers have been introduced with the intention to provide a solution to the problems associated with telecommunications thus far, it seems that they are in fact creating significant ethical problems. Therefore, our national priorities and intentions remain unclear. Questions remain of whether Australia should prioritise reducing online criminal activity or if it should prioritise the individual right to privacy.

To address these priorities, it may be useful to firstly determine whether Australia’s surveillance powers intend to support our national security interests in the first place. Any discussion of future legislation must consider to what extent surveillance and security can indeed continue to co-exist in a Democratic society.

Kearly Schirrman is the Head of Marketing and Communications at the Australian Crisis Simulation Summit.