The proportionality principle in telecommunications interception and access law in an environment of heightened security and technological convergence

Abstract

As nations expand the telecommunications interception and access powers of their law enforcement agencies to address heightened threats to national security and accelerating technological convergence, the proper application of the proportionality principle is becoming an increasingly contentious issue. The ‘proportionality principle’ in telecommunications law mandates the weighing of a likely threat to public security against the potential violation of individual rights so as to ensure that the intrusive impact of a particular interception and access activity is reasonable proportionate to the potential outcome sought. The reform discourse of recent years has largely focused on expanding investigative powers, to the possible detriment of the protection of individual rights. Whilst the present environment makes such a focus wholly understandable, the present paper considers potential legislative and policy measures that could strengthen the proportionality principle in the telecommunications regulatory framework to support a more precise calibration of the relevant competing public and private interests. As Australia has recently undertaken a comprehensive review of its telecommunications access and interception laws, commencing with a 2013 referral to its Senate Committee and culminating in a 2015 law reform report, the article focuses on that nation’s experience. The analysis is, however, placed within an overarching public policy framework to ensure that the discussion is of relevance to nations around the world who are similarly engaged in telecommunications law reform.