Decrypting Australia's ‘Anti-Encryption’ legislation: The meaning and effect of the ‘systemic weakness’ limitation

Abstract

The Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 is Australia's latest attempt at solving the ‘going dark’ debate. Yet, like many other regulatory attempts towards ameliorating the ill-effects of encrypted communications and information, it has been criticised for privileging law enforcement and intelligence aims of public safety and security over other interests; particularly privacy and cybersecurity. Some fear that the new powers facilitate the creation of encryption backdoors that could be exploited by bad actors. This paper examines the so-called ‘systemic weakness’ limitation, which was designed to allay these fears. The paper concludes that the limitation is effective at preventing the most blatant, wholesale encryption backdoors, yet is not a panacea against all cybersecurity-related concerns that the instrument brings, and its efficacy in practice is likely to be undermined by its substantive and procedural complexity.