Operation Ironside or known in America as Operation Trojan Shield was a recent criminal crackdown operation carried out by the United States Federal Bureau of Investigation (FBI) in conjunction with the Australian Federal Police (AFP) and several other international law enforcement agencies.
The operation involved the creation of an app, ANOM, by a confidential human source (CHS) that the AFP had a ‘master key’ to, thus, allowing for law enforcement to store and decrypt any messages being sent, using the encryption app, between some of the largest criminal organisations in Australia. The operation also monitored individuals overseas who were so transparently linked to Australia and its criminal underground.
Imbalances between Civil Liberties and a Bolstered National Security
Australian laws surrounding civil liberties are incredibly weak compared to those in the United States. This compared with the understanding that Australian national security is comparatively heavier to that of the United States points to why this operation was ultimately tested in Australia.
The Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (‘TOLA’) has been a significant factor into why the operation, involving entrapment and inducement of criminals, could be used under Australian law.
The TOLA ultimately allows for Australian law enforcement to gain the expertise and/or products of those independent from law enforcement in the name of safeguarding national security, among other things. These products, like the encryption app made by a CHS, could be considered to be breaching citizen privacy but are legal in its very nature due to Australia’s comparably small civil liberties to its bolstered national security.
These imbalances between national security and civil liberties opens up the idea of why counterterrorism and counter-insurgency specialist Allan Orr described Australia as a ‘virtual wild west’. This description of Australia’s laws relating to citizen privacy is a view upheld by many of those in the technology industry as well. Some of Australia’s largest tech businesses, including Atlassian and Senetas, as well as international companies such as Google and Facebook also share this with Allan Orr.
Different Applications of the Criminal Law
In most jurisdictions any contracts to do with software will likely meet some kind of requirements for citizen privacy, including good industry practice, disclaimers and limitations of liability. When considering the new TOLA legislation, if the government suspects you of any serious criminality it allows for a very large overreach of such guarantees of privacy. This privacy guarantee is something the American jurisdiction legally must provide for its citizens, along with a multitude of other international jurisdictions.
In the context of Operation Ironside, the criminal law cannot be applied in the same way to Australian criminals as it can for United States criminals. To go further with this idea, it is necessary to understand that the ANOM app essentially allowed for the entrapment and inducement of criminals. Entrapment, in particular, is allowed by the High Court of Australia but incredibly frowned upon in the United States. This is one of the predominant reasons as to why the testing phase of the operation was coordinated and carried out by the Australian Federal Police as it could not be done in the United States without breaking those crucial citizen privacy rules, no matter how many criminals they may have caught with such devices.
Fundamentally, the TOLA legislation paired with Australia’s utmost need for national security, no matter the civil liberties that may be breached, is why the application of the criminal law in Australia, in the context of Operation Ironside, is much easier to implement onto criminals using the ANOM app. This is due to the aforementioned lack of civil liberties in Australia, something the United States has a multitude of. Particularly in the context of this operation the United States has a much higher threshold for citizen privacy. Whilst the United States criminal law application, in the context of Operation Trojan Shield, is comparatively harder, the use of the app in Australia has allowed for some domestic hurdles to be overcome.
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