Amplifying the law enforcement voice in telecommunications Telecommunications policy in nations around the world is in its infancy, and governments and policy advisers are confronted with intricate scenarios and an unprecedented rapidity of change when formulating legislation to protect economic, social, ethical and national interests. The task for law enforcement in ensuring adherence to such legislation is equally challenging, so it is imperative that it be structured to meet the practical requirements of policing. General Manager, Scientific and Technological Systems and Management, Phil Baer, is responsible for AFP policy on telecommunications issues. The following paper is based on one he prepared for the Heads Of Commonwealth Operational Law Enforcement Agencies' Research Group into the Law Enforcement Implications of Electronic Commerce. It sets out some of the problems already experienced, future expectations, and the consultative mechanisms now available to law enforcement bodies which will enable them to have an impact on telecommunications policy in Australia. New telecommunications capabilities bring great benefits to law enforcement agencies - along with many problems. These problems can be exacerbated when law enforcement fails to establish a cogent and persuasive argument to balance the commercial and national development interests associated with the release of new telecommunications technologies. Such an example was the introduction of the analogue mobile phone system (AMPS) without an interception capability, which has had a detrimental impact on law enforcement operations. The subsequent similar introduction of the global specification mobile (GSM) digital mobile phone system, also without an interception capability, highlights law enforcement's failure to influence policy and to, as a minimum, maintain existing law enforcement capabilities. The cost of retro-fitting solutions after new telecommunications technology has been introduced, as opposed to a solution at the time of implementation, is prohibitively expensive. While there have been problems in the past, the current situation should minimise the opportunity for problems in the future. Until now, law enforcement and telecommunications have focused almost entirely on the interception of analogue voice communications. As telecommunications networks move from analogue to digital, accompanied by the increasing use of computer-based communications, law enforcement will increasingly find itself seeking to intercept and understand digital communications of all kinds, including voice, facsimile, picture, video and data. The volume of material likely to be intercepted will increase at an exponential rate, challenging law enforcement's capacity to receive and store the data, let alone understand it, unless significant automated tools become available. While law enforcement will, and properly so, focus on telecommunications interception, it is important that this not be seen as the sole law enforcement challenge of the digital information age. At an ever increasing frequency, law enforcement will find that records previously available in paper form will only be available in digital form. Evidence typically located in hard copy when executing search warrants will be found on personal organisers, palm-top computers, SIM cards, PCMCIA cards, floppies, hard drives, CDs, tapes, Zip drives, DVD's and so on, and as often as not, protected by encryption. Systems containing this information may be as simple as a single non-networked computer, to computers linked to extremely large LANs, WANs, Intranets, Extranets and, of course, the ubiquitous Internet. Again the sheer volume of data will present many challenges to law enforcement. Encryption will be embraced by law enforcement (indeed it already is in most cases) to secure its `business secrets', be they in the form of stored data, data in transit, or speech. Similarly, government, business and private individuals will resort to the use of encryption to safeguard their `business secrets' as invasive technology becomes more readily available. A properly implemented encryption framework will enhance the capacity for government, business and individuals to protect themselves. Equally, encryption in the hands of criminals may frustrate the efforts of law enforcement. One way of overcoming the problem of decryption is to provide law enforcement access to the `keys' used to encrypt data, however such access has generated considerable debate, particularly in the USA. The AFP position is to rely upon market forces to deliver a Key Recovery Capability - there being compelling business and commercial arguments for this. Where the capability exists, law enforcement will be able to use existing legislative provisions, particularly those for search warrants, to enable it to access keys if there is a lawful justification for such access. Where keys do not exist, other more invasive technologies would need to be considered. Issues such as authentication and non-repudiation also will gain prominence as commercial and banking transactions become increasingly paperless. It will be necessary to establish with certainty who did what, when and where from a law enforcement perspective as equally as it will be from a commercial or banking one. It is vital to electronic commerce for participants to be able to act upon messages, confident in the knowledge that both the author and the message content are authentic. Various technologies already exist while others are being developed to enable this degree of confidence. If law enforcement is not to lose its current capability, its interests need to be taken into account in such development. Legislative and jurisdictional questions in the digital age pose many challenges for legislative systems unaccustomed to the rapidity of reaction needed in trying to keep abreast of emerging technological change. Questions as to state-versus-national-versus-global jurisdictional issues will inevitably continue to arise and, until they are resolved, law enforcement will be left in its all-too-familiar `no man's land'. More rapidly than ever in the past, this situation will become intolerable. Increasingly, law enforcement will become involved in investigating attacks directed against the National Information Infrastructure or as the Americans refer to it, the Critical Information Infrastructure. The NII includes telecommunications, power grids, water supplies, financial institutions and systems, transport systems, and similar systems essential to the functioning of a nation in a global information economy. Due to the nature of such attacks, it is virtually impossible in the early stages at least, to distinguish between the motivations of youthful exuberance, criminal activity, cyber-terrorism or an information warfare. Inexorably, this will bring about particularly at the federal level, a blurring of the fine distinction between defence, national security and law enforcement interests. The challenge is for all areas to cooperate, to the extent that they are able, in both investigating incidents, sharing information and cooperating in research and development. At the federal level, the Attorney-General's Department already chairs inter-departmental committees (IDCs) dealing with cryptography policy and the Protection of the National Information Infrastructure. The AFP is represented on each IDC. The PNII IDC provides a forum at which any issues arising through the blurring of distinction between defence, national security and law enforcement can be discussed. The IDC is involved in industry consultation to raise the awareness of industry on the threat to the NII. It also seeks to encourage reporting of incidents to enable threat assessment, risk management and national response to be based on accurate data. Many studies have shown that instances of computer crime (a major threat to the NII) is vastly under-reported. Similarly, many studies have shown that attacks upon computer systems are frequently not even detected. As telecommunication technologies underpin most modern day communications, it is gratifying to find that law enforcement's relationship with the regulatory and planning aspects of the Australian telecommunications scene is now vastly better and far more formalised than when the AMPS and GSM systems were introduced. There is now legislative provision which seeks to maintain law enforcement's legitimate current interception capabilities and access to information. With the passage of the Telecommunications Act 1979 and its subsequent amendment, law enforcement interests are, to an extent, safeguarded by legislation with carriers and carriage service providers obliged to file interception capability plans and consult with law enforcement on new technologies. The principal regulator of Australian Telecommunications is the Australian Communications Authority established under the Australian Communications Authority Act 1997. Australian Communications Authority Law Enforcement Advisory Committee The main body in which law enforcement has a voice in the development of telecommunications policy is the ACA's LEAC. However, such influence in the past has been minimal. Among the ACA's roles is the regulation of Australian telecommunications. Under the former regulator, Austel, a Law Enforcement Advisory Committee was created under Ministerial Direction and was commonly referred to as LEAC. Under section 51 of its Act the ACA has established advisory committees and among them is a Law Enforcement Advisory Committee (LEAC) similar to the one which existed under Austel, but with some significant differences. LEAC Membership of the LEAC consists of: nominee of the First Assistant Secretary, Information and Security Law Division, Attorney-General's Department; nominee of the First Assistant Secretary, Telecommunications Industry Division, Department of Communications and the Arts; up to three representatives of State or Territory law enforcement agencies, as nominated by the Australasian Police Ministers' Council; nominee of the Commissioner, Australian Federal Police; nominee of the Chairman, National Crime Authority; nominee of the Director General of Security; nominee of the Director, Defence Signals Directorate; representative of Telstra Corporation; representative of Optus Communications; representative of Vodafone; and up to three representatives of carriers or carriage service providers, as nominated by the Australian Communications Industry Forum. The Chair of the LEAC is a nominee of the Chairman, ACA. The LEAC's functions are: o To advise the ACA on law enforcement and national security issues. o To provide a forum for the exchange of views on telecommunications-related law enforcement and national security issues. o To provide a forum for advice to government, through the ACA, on law enforcement and national security issues relating to telecommunications. o To facilitate coordination of law enforcement and national security aspects of development in the telecommunication network. o To provide advice to the ACA on prospective elements of law enforcement and national security-related telecommunications issues that could be brought to the attention of industry fora. The LEAC under Austel operated with five sub-committees: Sub-Committee A (New Technology); Sub-Committee B (Call Tracing & Computer Crime); Sub-Committee C (Project Management); Sub-Committee D (Legislative and Procedural); and Sub-Committee E (Encryption). Under the ACA this committee structure has been varied to avoid the appearance of, or potentially actual, conflict of interest on the part of the ACA in its role as a regulator and arbitrator. LEAC New Technology Sub-Committee (Sub-Committee A) The New Technology Sub-Committee has been established by LEAC to assist in the roles and functions set out in Part 15 of the Telecommunications Act 1997 as amended by the Telecommunications Legislation Amendment Act 1997. Membership is limited to designated agencies as defined in section 329 of the Act and the ACA. Designated agencies are: AFP; State and Territory police services; NCA; NSW Crime Commission; NSW ICAC; Qld CJC; ASIO; NSW Police Integrity Commission; a prescribed authority established by or under a law of the Commonwealth, a State or Territory; Commonwealth Attorney-General's Department (observer status); and the Commonwealth Department of Communications, the Information Economy and the Arts (observer). The Chair of the New Technology Sub-Committee is provided by the ACA. Carriers and carriage service providers have access to this sub-committee, either as they request or are invited. The functions of the sub-committee are: o To be a forum in which carriers and carriage service providers may give notice of the particulars of any new technology or change to existing technology whose implementation may affect their provision of interception capability and, as required, consult with designated agencies about those proposals. o To be a forum to which the ACA may refer a notification of a new technology for the purposes of meeting its obligations to notify agencies. o To be the forum by which the ACA may consult designated agencies about proposed exemptions from interception requirements for trial services. o Refer any legal and policy matters of which it becomes aware to the LEAC, the ACA or other appropriate body. o Refer matters which require consideration and action by the agency coordinator to that person. Its functions do not include project management or contracting matters with regard to the provision of interception capability or delivery capability; consideration of any matters which have been referred to the ACA for arbitration or enforcement action; consideration of matters which are to be handled by the agency coordinator. LEAC Legislative and Procedural Sub-Committee (Sub-Committee D) Sub-Committee D's role is to consider legal and procedural issues relating to the access of law enforcement and national security agencies to telecommunications-based assistance in the regulatory framework established by the Act. It arose from an ad hoc group which coordinated law enforcement and national security contributions to the formulation of that framework. Current membership comprises: the nominee of the First Assistant Secretary, Information Security Law Division, Attorney-General's Department; the nominee of the Commissioner, Australian Federal Police; the nominee of the Director-General of Security; the nominee of the Commissioner, NSW Police; the nominee of the Chairman, National Crime Authority; the nominee of the Chief Commissioner, Victoria Police; carrier and carriage service provider members of the LEAC may also be members of the sub-committee, or provide other suitable representatives from their organisations; and the nominee, or nominees, of the Chairman of the LEAC. The Chair of this sub-committee is chosen by the members and ratified by LEAC. It is currently chaired by the AFP. Functions of Sub-Committee D are to: o Monitor developments in the legislative and regulatory telecommunications framework for their impact on law enforcement and national security. o Report to the LEAC on the impacts of legislative proposals, and, where appropriate, provide advice to the LEAC. o Bring to the LEAC's attention developments which require response or action. o Consider and advise the LEAC on legislative and procedural matters referred to it by that body. Because Sub-Committee D does not represent all the interests on the LEAC, except where otherwise instructed by the LEAC, its functions do not extend to acting on behalf of the LEAC; advancing its views as representative of the LEAC as a whole; or making submissions to third parties as a LEAC sub-committee. The sub-committee may request certain categories of its members not to be present at some discussions, where there is a reasonable belief that the presence of those members could adversely impact on the decision. Former Austel LEAC Committees not continued under ACA comprise Sub-Committee B (Call Tracing and Computer Crime), Sub-Committee C (Project Management) and Sub-Committee E (Encryption). Sub-Committee C has been replaced, outside the LEAC forum, by the Special Networks Committee. The work of Sub-Committees B and E was not considered to be encompassed by the LEAC charter. In this latter regard it is noted that the National Police Research Unit has an active interest in Computer Crime and that there is a Commonwealth IDC on Cryptography. Interception Capability Committee The 1997 amendments to the Act introduced the concept of Agency Coordinator and directed that it should be the Secretary, Commonwealth Attorney-General's Department, or a person appointed in writing by the Secretary. Under this arrangement, the First Assistant Secretary, Information and Security Law Division was appointed Agency Coordinator and as such convened an Interception Capability Committee. The function of the ICC is to review the interception capability plans submitted as required by the Act to the Agency Coordinator. Membership is open to all agencies involved in the legal interception of telecommunications services and to the Commonwealth Attorney-General's Department. Special Networks Committee As a consequence of the discontinuance of Austel's LEAC Sub-Committee, a Special Networks Committee independent of the ACA's LEAC was established, although its chair usually reports on its activities at LEAC meetings. The SNC's functions are to: o Develop and negotiate projects relating to the legal interception of telecommunications services, based on the provisions of the Act. o For each project, develop as required, on behalf of intercepting agencies the necessary documentation to ensure that the agencies' requirements for the delivery and formatting of intercept product are met. o Negotiate contracts with carriers and carriage service providers for the delivery of interception services. o Oversight the evaluation of interception projects in accordance with agreed evaluation programs. o Report, as appropriate, to each meeting of the ACA's LEAC on the activities of the committee, having regard to the commercial-in-confidence nature of the projects. Membership of the committee is open to all agencies involved in the legal interception of telecommunications services. Other members may be co-opted as required. Core membership comprises the Australian Security Intelligence Organisation (Chair); AFP; National Crime Authority; Victoria Police (representing State intercepting agencies); Australian Security Intelligence Organisation (specifications); Australian Security Intelligence Organisation (project and contract administration). The National Telecommunications Interception Conference The National Telecommunications Interception Conference is an annual national conference involving representatives of all agencies involved in the legal interception of telecommunications services. The conference brings together representatives of all parties involved in lawful telecommunications interception, including carriers, technical personnel, legal personnel and interception room personnel. It also has a technical and a legal sub-committee, each of which meet at the time of the conference and report back to the conference. Inter-Agency Technical Group The Inter-Agency Technical Group arose from the National Telecommunications Interception Conferences of 1995 and 1996. IATG meets in association with LEAC meetings but it is not a LEAC body. The IATG is chaired by NSW Police. Its terms of reference are to encourage, in the interests of intercepting agencies, by the effective application of technology, economies of operation; timeliness of product delivery; improved usefulness to members of technology; and improved technical quality of product and systems operability. Membership of the IATG is open to technically oriented representatives of all agencies involved in the legal interception of telecommunications services and a representative of the ACA. Australian Communications Industry Forum Limited The Australian Communications Industry Forum is heavily involved in the preparation of industry codes of conduct through its Operations Code Reference Panel. Membership of its various OCRP working committees may be open to law enforcement as appropriate from time to time. As an example, the AFP is represented on ACIF's OCRP Working Committee No. 7, which is preparing two Industry Codes of Practice on the assistance given by carriage service providers to law enforcement, national security and emergency service organisations in accordance with the Act. Details of ACIF's activities are at `http://www.acif.org.au'. National Exchange of Police Information National Exchange of Police Information was established by the Australian Police Ministers' Council in 1990 to facilitate the exchange of law enforcement information. NEPI generally has an observer at LEAC meetings and has been active in furthering law enforcement access to the Integrated Public Number Database established by Telstra Corporation under the Act. National Police Research Unit The National Police Research Unit was also established by the Australian Police Ministers' Council. The NPRU has actively promoted a Computer Investigative Techniques program throughout the 1990s and through this maintains an interest in telecommunications and cryptographic issues as they impact on computer investigative techniques. More details about the NPRU are at http://www.npru.gov.au. Footnote: Mr Baer's original paper included input from Glenn Wahlert, AFP Corporate Planning and from Keith Inman, National Crime Authority. BACK TO DECEMBER 1998 PLATYPUS