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Regulatory arbitrage and transnational surveillance: Australia's extraterritorial assistance to access encrypted communications

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Listed:
  • Mann, Monique
  • Daly, Angela
  • Molnar, Adam

Abstract

This article examines developments regarding encryption law and policy within 'Five Eyes' (FVEY) countries by focussing on the recently enacted Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (Cth) in Australia. The legislation is significant both domestically and internationally because of its extraterritorial reach, allowing the development of new ways for Australian law enforcement and security agencies to access encrypted telecommunications via transnational designated communications providers, and allowing for Australian authorities to assist foreign counterparts in both enforcing and potentially circumventing their domestic laws. We argue that Australia is the 'weak link' in the FVEY alliance as - unlike other FVEY members - has no comprehensive enforceable human rights protections. Given this, there is a possibility for regulatory arbitrage in exploiting these new surveillance powers to undermine encryption via Australia.

Suggested Citation

  • Mann, Monique & Daly, Angela & Molnar, Adam, 2020. "Regulatory arbitrage and transnational surveillance: Australia's extraterritorial assistance to access encrypted communications," Internet Policy Review: Journal on Internet Regulation, Alexander von Humboldt Institute for Internet and Society (HIIG), Berlin, vol. 9(3), pages 1-20.
    • Handle: RePEc:zbw:iprjir:224940
    DOI: 10.14763/2020.3.1499
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    References listed on IDEAS

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    1. Gstrein, Oskar Josef, 2020. "Mapping power and jurisdiction on the internet through the lens of government-led surveillance," Internet Policy Review: Journal on Internet Regulation, Alexander von Humboldt Institute for Internet and Society (HIIG), Berlin, vol. 9(3), pages 1-17.
    2. Vazquez Maymir, Sergi, 2020. "Anchoring the need to revise cross-border access to e-evidence," Internet Policy Review: Journal on Internet Regulation, Alexander von Humboldt Institute for Internet and Society (HIIG), Berlin, vol. 9(3), pages 1-24.
    3. Aaron J. Ley, 2016. "Vested Interests, Venue Shopping, and Policy Stability: The Long Road to Improving Air Quality in Oregon's Willamette Valley," Review of Policy Research, Policy Studies Organization, vol. 33(5), pages 506-525, September.
    4. Hannah Murphy & Aynsley Kellow, 2013. "Forum Shopping in Global Governance: Understanding States, Business and NGOs in Multiple Arenas," Global Policy, London School of Economics and Political Science, vol. 4(2), pages 139-149, May.
    5. Daly, Angela & Thomas, Julian, 2017. "Australian internet policy," Internet Policy Review: Journal on Internet Regulation, Alexander von Humboldt Institute for Internet and Society (HIIG), Berlin, vol. 6(1), pages 1-12.
    6. Molnar, Adam & Parsons, Christopher & Zouave, Erik, 2017. "Computer network operations and 'rule-with-law' in Australia," Internet Policy Review: Journal on Internet Regulation, Alexander von Humboldt Institute for Internet and Society (HIIG), Berlin, vol. 6(1), pages 1-15.
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    Cited by:

    1. Gstrein, Oskar Josef, 2020. "Mapping power and jurisdiction on the internet through the lens of government-led surveillance," Internet Policy Review: Journal on Internet Regulation, Alexander von Humboldt Institute for Internet and Society (HIIG), Berlin, vol. 9(3), pages 1-17.

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