Is It Illegal to have an Encrypted Phone in NSW?
In New South Wales, the use of encrypted phones and devices has become a topic of legal debate. There are laws that specifically address the possession of dedicated encrypted criminal communication devices. These laws aim to combat organised crime, terrorism, and other illicit activities that may involve the use of encrypted phones or devices.
The laws primarily came into effect after the success of Operation Ironside.
What was Operation Ironside?
Operation Ironside was a joint law enforcement operation carried out by the Australian Federal Police (AFP), in collaboration with the Federal Bureau of Investigation (FBI) in the United States, and other international partners. It was a covert operation that aimed to dismantle and disrupt organised crime syndicates engaged in transnational criminal activities, particularly in the realm of organised drug trafficking and money laundering.
Operation Ironside was initiated in 2018 and spanned over several years, with the final phase being executed in June 2021. The operation involved the use of an encrypted messaging platform called ANOM, which was created and managed by law enforcement agencies. The ANOM platform was covertly distributed to criminals as a supposedly secure means of communication, allowing law enforcement agencies to monitor and intercept messages exchanged between criminal networks.
Under Operation Ironside, law enforcement agencies in Australia and other countries conducted extensive investigations and executed numerous search warrants, arrests, and seizures. The operation resulted in the arrest of hundreds of individuals involved in various criminal activities, including drug trafficking, money laundering, and other serious offences. Additionally, significant quantities of drugs, tons of cocaine, firearms, cash, and assets were seized as part of the operation.
Operation Ironside was heralded as a landmark law enforcement operation. It resulted in the disruption of organised crime networks on a global scale. The operation demonstrated the effectiveness of international law enforcement cooperation and the use of advanced technological tools in combating transnational organized crime. It also highlighted the growing use of encrypted communication platforms or secure mobile phones by criminals for illegal activities and the innovative strategies employed by law enforcement agencies to combat such threats.
Dedicated Encrypted Criminal Communication Device (DECCD) Bill
The DECCD Bill has resulted in the enactment of the DECCD Act, which has brought about changes to the Crimes Act 1900 (NSW) and the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (the LEPRA).
As per the newly added part 5A of the LEPRA, police officers now have the authority to seek a DECCD access order from a magistrate if they suspect that a person is using a mobile device solely for criminal purposes. This order requires the subject of the order to provide necessary information to unlock the device for police inspection.
It is mandated by law that once access to the suspect’s device is granted, the officer can only examine data that pertains to whether the device is a DECCD. Failing to provide police access to a device is now a punishable offence, with a potential penalty of up to 5 years of imprisonment, as per the newly introduced section 80O of the LEPRA.
What is a Dedicated Encrypted Criminal Communication Device?
A dedicated encrypted criminal communication device (DECCD) is described as a mobile electronic device that meets the following criteria:
- It is specifically designed or equipped to facilitate communication between individuals who are reasonably suspected of being involved in serious criminal activity and criminal offences, with the intent of evading detection by law enforcement;
- It utilises hardware modifications or software that alters its factory operating system, either temporarily or permanently, in order to block or replace key features. This may include blocking or replacing voice calls, web browsers, geolocation services, or enabling encryption of communication between users, with the purpose of impeding law enforcement’s access to information on the device; and
- It may also include devices that are modified with a duress password, a kill switch or PIN capable of wiping data on the device, the use of a mobile service that cannot be traced to an individual, or devices without an International Mobile Station Equipment Identity (IMEI) number.
These are some examples of the characteristics that define a DECCD, which are encrypted phones used by criminals, aimed at facilitating communication among suspected criminals while evading law enforcement detection through the use of secure phones.
Possession of a Dedicated Encrypted Communication Device and the Law
Under the Crimes Act 1900 (NSW), a person who possesses a Dedicated Encrypted Criminal Communication Device (DECCD) with reasonable grounds to suspect that it is intended to be used for serious criminal activity may face a maximum penalty of 3 years imprisonment.
The court may consider several factors when determining if there are reasonable grounds to suspect that the device was intended for criminal activity, including whether a service attached to the device is registered under a false name, if the device was obtained from a criminal network, or if the person in possession of the device also possesses indications of drug supply, prohibited firearms, or child abuse material.
The term “serious criminal activity” is defined as an offence punishable by imprisonment for 5 years or more, or as prescribed by the Criminal Assets Recovery Act 1990 (NSW). This Act includes various offences such as drug trafficking, slavery, money laundering, firearms offences, among others, which are classified as “serious criminal offences”.
The Dedicated Encrypted Criminal Communication Device Prohibition Orders Act 2022 (NSW) establishes a scheme similar to the existing Firearm Prohibition Order scheme and Drug Supply Prohibition Order Pilot Scheme. According to Section 9 of the Act, an eligible person, defined as someone who is at least 18 years old and has been convicted of a serious criminal offence, may be subject to a prohibition order if a police officer reasonably believes that the person is likely to use a DECCD to avoid law enforcement detection of criminal activity.
If granted by an Authorised Magistrate, the prohibition order allows officers to stop, detain, and search the person, enter premises under their control, or search vehicles under their control without a warrant, for the purpose of determining if the person is in possession of a DECCD.
When considering whether to impose a prohibition order, an Authorised Magistrate may take into account factors such as the potential risk to public safety presented by the person, associations with suspected individuals involved in serious criminal activity, criminal intelligence about the person’s suspected involvement in criminal activity or drug-related organised crime, information from registered sources, surveillance reports, and whether the person possesses cash or assets disproportionate to their income.
The prohibition order must be in effect for a minimum of 6 months but not longer than 2 years.
Can I Appeal a Dedicated Encrypted Criminal Communication Device Prohibition Orders?
Although a person subject to an order is not entitled to be notified about the application or make submissions, they may apply to the Local Court to have the order revoked once it is in force. The Local Court may affirm, vary, or revoke the order based on the circumstances, including if it is deemed onerous, if the subject of the order is not likely to use a DECCD, or if the risk of the subject using a DECCD could be mitigated in an alternative manner.
If you have been charged with possession of a dedicated encrypted communication device, or are aware of being subject to a prohibition order. You should contact our leading criminal lawyers in Parramatta immediately.
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