Domestic telecommunications companies assist law enforcement by the lawful interception of otherwise private communications when presented with a valid warrant.
This has been a powerful tool to combat crime. In the 2019–20 financial year, for example, 3,677 new warrants for telecommunications interception were issued, and information gained through interception warrants was used in 2,685 arrests, 5,219 prosecutions and 2,652 convictions.
But law enforcement and security officials assert that the usefulness of ‘exceptional access’, as it’s called in this paper, has declined over time as strong encryption has become increasingly common.
The Australian government has committed to the reform of Australia’s electronic surveillance legislative framework. Although its discussion paper mentions encryption only in passing, we can expect that encryption and going dark will be a topic of debate as reform is considered. This paper contributes to that debate by examining how firms that provide digital communications services can provide assistance to law enforcement even as strong encryption is increasingly common.