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Lawful Interception – Obligation in Australia

The Law

For law enforcement and security intelligence agencies, telecommunications interception is an important source of information which is generally agreed to be less intrusive into the lives of individuals than other methods which may cast suspicion on people who are subsequently found to be blameless.

The Telecommunications Act 1997 imposes obligations on carriers and carriage service providers in regard to the provision of interception facilities. The legislation governing the interception process is the Telecommunications (Interception) Act 1979 which sets out the conditions under which a service may be intercepted and the actions required of the various parties involved. This legislation is available on the Attorney-General’s Department Website, Window on the Law at http://law.gov.au.

Interception Obligations

General terms In general terms, unless exempted, all carriers and carriage service providers must provide facilities which enable them to execute a warrant for interception and to provide special assistance to law enforcement and security agencies.

The substance of the obligations can be provided by SSI and is drawn from an International User Requirement agreed to by Australia, North America and the European Union countries. The full text of the Requirement is also publicly available on the Internet

In Summary, under Part 14 of the Telecommunications Act 1997, carriers, carriage service providers and carriage service intermediaries are under an obligation to:

do their best to prevent telecommunications network and facilities from being used in, or in relation to, the commission of offences against the laws of the Commonwealth or of the States and Territories and give officers and authorities of the Commonwealth, States and Territories such help as is reasonably necessary for the enforcement of the criminal law (as well as for the enforcement of laws imposing pecuniary penalties and the protection of the public revenue). Resellers who arrange for carriage services to be supplied are carriage service intermediaries. Internet Service Providers are carriage service providers.

What are the obligations In addition to the basic obligations set out above, there are also obligations in Part 15 of the Telecommunications Act, as amended:

ensure that a network or a facility (used in the supply of a carriage service) has the interception capability to enable a communication passing over that network or facility to be intercepted in accordance with a warrant issued under the Telecommunications (Interception) Act 1979 (under browse/contact Commonwealth Numbered Acts 1973+ Alphabetical listing/Telecommunications Act 1995 to Therapeutic Goods section). (There are some exemptions to this, but the basic obligation is on ‘carriers and carriage service providers’) pay for that interception capability up to the point of interception.

(Delivery and formatting are agency responsibilities) for carriers and carriage service providers nominated by the Attorney-General, lodge an annual Interception Capability Plan with the Agency Co-ordinator and the ACA notify the ACA of technological changes which may have a material and adverse impact on the provision of interception and associated activities, and not to introduce that change until the agencies have had an opportunity to consult and specify their delivery needs arising out of the change.

Interception Capability Plans

While all carriers and carriage service providers are required to provide interception facilities, the Telecommunications Act 1997 also requires carriers and certain nominated carriage service providers to submit an annual Interception Capability Plan (ICP) setting out their policies in relation to interception generally and their strategies for complying with their obligations. The carrier or carriage service provider is also required to give advance notice of proposed developments which could have an effect on their interception capability during the subsequent five years.

The idea behind the ICPs is to provide a basis for carriers and agencies to think about and work through the implications of strategic business developments for interception capabilities and related matters.

In the process of working through the implications, it is expected that agencies and carriers will identify for each service or category of service, an agreed interception capability which will enable the carrier to seek exemption from those elements that are not required.

The result for the agencies is that they will be able to develop project and investment plans to:

ensure that interception product storage and processing equipment is capable of handling the range of traffic types and volume likely to be encountered or to put in place other information collection strategies where it is apparent, for cost or other reasons, that these are required to supplement or replace interception facilities that will no longer be available.

For the carriers, early consultation will enable their business developments to proceed with the minimum of cost for interception facilities and with confidence that commercial launch of the products and services will not be delayed by negotiations about interception capabilities at the last minute.

To ensure compliance an ICP should contain at the very least the following elements policies and strategies relevant to the carrier or provider’s compliance relevant developments in the business looking to a period of five years list of employees with responsibility for relevant matters the strategies to be employed to minimise costs over the long term, and other matters as determined by the Minister Please contact the SSI team for more information or if you need support of clarification with your own ICP.

Source Material: Australian Communication Authority.