Police can now snoop Facebook, emails and text messages

Internet social networking sites like Facebook, private emails and mobile phone text messages are included in sweeping new phone tap powers being given to Queensland police.

The new phone tap powers are contained in legislation presented to the Queensland state Parliament earlier in February, shortly before the state election was called. They follow intense lobbying by police for such laws and will also be available to the state’s Crime and Misconduct Commission

As a criminal defence lawyer I have been bemused by the state government’s PR “spin” on the issue which has carefully fudged just how widely the new powers for police to tap phone calls and all private electronic communications will go.

The new legislation in effect means police can seek the power to tap everything - every modern form of communication that passes over a telecommunications system.

Under the Telecommunications Interception Bill, Police and the Crime and Misconduct Commission will be able to eavesdrop on all private emails and mobile phone calls, intercept text messages and snoop on private messages on social network sites like Facebook and MySpace.

They will have authority to eavesdrop on communications, be they speech, music or sounds, data, text, images or signals. Anything and everything will be part of the interception laws. Only now is the general public starting to realise how intrusive the legislation will be.

This “Big Brother” side of the phone tap powers has sneaked under the media’s radar so far and government assurances that the phone tapping powers are somehow going to be safeguarded by the vetting of a state government-appointed watchdog, the Public Interest Monitor, are naïve at best.

The Queensland legislation differs from other states’ phone tap laws insomuch as the Queensland applications to a Supreme Court judge for phone tap requests are to be vetted by the Public Interest Monitor.

On the face of it, this is supposed to guard against possible abuse of the law, to make sure police have a valid reason for seeking such a surveillance warrant.

The reality is that the Public Interest Monitor role is essentially nothing more than a public relations gesture. The legislation does not give the PIM any real powers to prevent police launching fishing expeditions in the hope of catching someone on a crime.

From what we can see in the Telecommunications Interception Bill, police or Crime and Misconduct Commission applications to a judge for a phone tap are to be vetted by the Public Interest Monitor, but this government-appointed person has no power to refuse or significantly influence any application.

Despite assurances about the public’s rights being safeguarded, the PIM seems to be a toothless tiger, there to calm those worried about infringements of civil liberties. I cannot see where this person has any real powers such as the power to refuse a phone tap application or over rule a judge’s granting of an application.

Tight controls and restraints need to be imposed on these powers, but looking at the legislation, there’s nothing in there to stop the police from using these powers to snoop on citizens in the hope of finding something incriminating.

If we are to have phone taps foisted on us, then any information provided to the PIM to support a phone tap application must also be provided to the defence if that evidence gathered formed part of a subsequent Crown case.

Given the manner in which electronic communications could be manipulated, I expect any evidence gathered by phone taps or electronic intercepts to be vigorously tested in the courts.

The police say having these powers will make it easier to catch criminals but phone tap recordings and intercepted emails and texts can be manipulated. Just as a photograph can be challenged in court on its authenticity, so we can expect any telephone or electronic communication intercept evidence will be challenged in court.

If the police are presenting taped conversations or intercepted emails as evidence, then obviously we would need to vigorously investigate whether the tapes or emails were genuine or had been edited or tampered with in any way. It’s going to complicate trials and maybe make some of them longer.

Strict controls on phone taps are needed to avoid the spectre of giving the CMC and police the power to just tap phones in the hope of catching someone out.

When you start chipping away at the public’s rights, you undermine the foundations of our civil liberties.

Advocates of the phone tap laws claimed criminal gangs have relocated to Queensland because the state’s current laws did not allow phone taps. This is misleading. Federal phone tap laws could be applied in Queensland if circumstances warranted.

What this is really about is giving the Queensland Police more powers and controls over the daily lives of Queenslanders.

I very much doubt organised crime these days restricts its communications to fixed telephone lines, but that’s been the PR image pushed by the government and police to get the laws here changed. They have portrayed criminal gangs as devious types whose activities can be detected via a phone tap. This image belongs to 1950s movies about the FBI.

Gangs, like international terrorists, use all manner of electronic communications system to talk to one another, yet the police and state government have deliberately avoided acknowledging this. Why? Because the logical next step is to eavesdrop on every form of private electronic communication.

This includes things that might be written in silly emails that zip around computer terminals in the office, get forwarded to friends and family, or written about on one of the social network internet websites that are so popular now as a communications medium.

Would you say some of the things you might say in a private email or a private posting on Facebook or MySpace, if you knew the police were intercepting it, and adding it to a dossier under your name?

This is the side of the phone tap laws they don’t want you to think about - the intrusion upon our daily lives and the erosion of our privacy.

Don’t say such surveillance can’t happen. Making it legal makes such surveillance inevitable.

The new laws, when implemented, will be a wakeup for all Queenslanders to be careful about what they say and send in private messages and emails because everything you say or send via a telecommunications system can be tapped.

Tight and transparent supervision of the monitoring process is essential and it is inevitable prosecutions stemming from intercepted information will be vigorously challenged in the courts.

Police may regard their new powers as a heavy hitting weapon against crime, but that’s a public relations message for the masses. The reality is that criminal trials in Queensland just became more complicated.