LECA The Economic Impact of Laws that Weaken Encryption

The focus of this report is to assess the available evidence of the impact of TOLA on the Australian and global economies. [...] Legal scholars may disagree as to the interpretation of both the amendments in TOLA and the extent to which pre-TOLA legislation that is part of the legal framework related to the government’s lawful access to information might be interpreted as granting some level of government powers to circumvent encryption. [...] Moreover, reporting on TOLA notices is quite limited, with no disclosure of who received notices and only high-level statistics reported on the number of TOLA notices issued.32 The disclosure restrictions and the limitations on 31 For example, as we explain further below in the discussion of the history of TOLA, the INSLM report calls for a major change in the allocation of authority to issue TOLA. [...] TOLA History The motivation for passage of TOLA derives from the growing concern in Australia and around the world that increased use of encryption poses a threat to the ability of LEIAs to access digital data in the course of their law enforcement and security efforts. [...] Nevertheless, a number of concerns remained.43 The Parliamentary Standing Committee for the Scrutiny of Bills also reviewed the Bill.44 Whilst a full analysis of the Standing Committee’s findings is beyond the scope of this report, the Committee raised additional concerns regarding the potential unconstitutional nature of excluding judicial review of TOLA notices under the Administrative Decisions.