The South Australian Supreme Court has published a potentially important first instance decision about the admissibility of the evidence obtained by the Australian Federal Police using the AN0M messaging application.
AN0M was an app that was ostensibly highly encrypted and secure. However, it was designed with a back door. Every message sent was copied to the AFP without a warrant.
The decision in R v TB & CD
In R v TB & CD [2023] SASC 45 Kimber J considered an application by the accused to exclude the AN0M messages on the ground that the messages were copied by the AFP contrary to the Telecommunications (Interception and Access) Act 1979 (Cth) (TIAA).
I don’t intend in this post to summarise the entire decision. Rather I wish to highlight what I believe is one flaw in the Court’s reasoning. It relates to the second ground raised by the accused. Discussion of the ground starts at [94] and the key reasoning starts at [99].
The key facts
The decision attaches great significance and weight to the following facts:
- The AN0M app sat on top of the Android Operating System,
- Messages were typed in the AN0M app,
- The user would hit ‘send’. The app would (without the user knowing) make a copy of the message which it would immediately transmit to the AFP (along with other information such as the sender’s GPS location). It would also send the encrypted message to the intended recipient.
- The copying occurred in the AN0M app, before the intended message was encrypted and sent to the Android Operating System for delivery over the telecommunications network.
The accused’s second contention
The accused submitted an interception occurred upon the pressing of the send button as it was that act which caused the copy of their outgoing message to be created and then sent to the AFP. ((At [94] and [104].))
Kimber J commences analysis of this contention at [95]:
“In my view, what is important … is the undisputed evidence that the separate copy was created within the application itself being sent to the Android Operating System for transmission to the network. … [T]he issue is whether [the sender’s] message was passing over the telecommunications system when the [copy to be sent to the AFP] was created within the application”.
(emphasis added)
Centrally Kimber J opines at [100] “in my view, a messaging application is not part of the telecommunications system” even though it was not disputed ((At [101].)) that a mobile telephone itself is.
At [105] his Hon held that a communication is not sent and transmitted by the action of a person pressing a button and no more. Certain things have to occur between the ANOM app and the Android Operating System before the Android Operating System transmits the data over the cellular network.
With respect I have some difficulty with both above findings.
Separation of the an0m app from the operating system
Just as the Android Operating System is not where the AN0M messages were copied, the Android Operating System does not enable users to make phone calls. There is a ‘dialler’ app that is a standard application installed over the operating system that allows the making of phone calls. Without a dialler app, an Android phone cannot make a phone call. The dialler app nevertheless must communicate with the Operating System to originate (or terminate) an ordinary phone call.
If his Honour’s conclusions about what occurs in the AN0M app are taken to their logical conclusions, the dialler app is not part of the telecommunications network or system and the protections in the TIAA are useless in relation to Android mobile telephones. On his Honour’s reasoning, all that needs to occur is for Police to ‘intercept’ (in lay terms) the communication in the dialler app before it is transmitted to the Android Operating System. That in my view cannot have been the legislative intention.
It is with respect extremely artificial to separate the operating system from the apps that run on it. It would be akin to saying that an interception inside the handset of a traditional landline phone did not occur within the ‘body’ of the phone or the network that the phone connected to.
Identifying the ‘network’ for the purposes of the Telecommunications (Interception and Access)Act 1979
As an aside, the decision also appears to assume that the relevant telecommunications network is the cellular network operated by the telephone company (eg Telstra, Optus) that the Android Operating System connected to. There is no analysis of whether the ANOM ecosystem may itself be a telecommunications network (as defined in s5(1) of the TIAA). I don’t have a firm view one way or the other on this issue. It seems likely that the accused didn’t raise it, and it may well be that there was no ‘interception’ of the ‘AN0M network’ because it was the AFP’s (and FBI’s) network to begin with.
GPS location of the sender
As a further aside, the decision does not address whether the transmission to the AFP of the sender’s GPS location may have been a breach of surveillance devices legislation.
In this case I agree with his Hon.
Lets take a similar use-case such as the traditional facsimile ( one could argue that this is a good example of a precursor to the more modern messaging apps and the process of transmitting a message).
A fax machine is broken into 3 components (and is essentially the same functional process to the more modern case of sending a text message);
1. A scanner.
2. A copier
3. A telecommunications transmission device
When faxing, the message is scanned, a digital copy is made for transmission and then that copy is both transmitted and locally copy is printed (copy).
The local printed copy is not an intercept, it is created prior to any transmission and is not related at all to the telecommunications transmission of what is sent.
One could pick up that local copy and re-fax it to any other destination.
if there was no telecommunications transmission (assuming that to be true) but the “device” or its “software” is what copied and sent then there must be legislation covering the actual device regardless if it was sent via telecommunications or not.
whatever might be said about the nature of the communications is irrelevant if the device was illegally performing functions such as copying/sending information without the required warrant to do so.
correct me if I am wrong but doesn’t the TIAA have a “device” and “telecommunications” warrant.
there must be some distinction between the two 🤔
also another point. evidence obtained from a electronic device in the evidence act.
was the operating system tested and was the operators trained.
is there a safeguard in place so the metadata can’t be manipulated.
did the application use the device to obtain gps, and if so how.
there would be so many avenues to go down in regards to this..
The print feature of scanned and sent facsimiles on fax machines is a preference set by the user to retain paper records. It is not an essential part of the process. The digital copy is what is important, as that is what facilitates the transmission.
Unless your suggestion is that law enforcement can redirect the digital copy from any user’s fax machine without the user’s knowledge or a warrant, that line of thought may only be correct if the scanning capability is not deemed to be part of that ‘telecommunications device’ with regards to the TIAA decision discussed above.
Section 5 of the TIAA defines a ‘telecommunications device’ as ‘a terminal device that is capable of being used for transmitting or receiving a communication over a telecommunications system.’ Leaving the app issue aside, there is no question this would include the ANOM device.
A ‘telecommunications network’ is defined as ‘a system, or series of systems, for carrying communications by means of guided or unguided electromagnetic energy or both, …’ How would the information get into the ANOM device or ‘system’ if the app is not included as part of the ‘telecommunications network’?
A ‘telecommunications service’ is defined as ‘a service for carrying communications by means of guided or unguided electromagnetic energy or both, being a service the use of which enables communications to be carried over a telecommunications system operated by a carrier …’ A similar question can be asked here. How can the ‘service’ carry communications over their ‘system’ if the app is not included as part of the ‘telecommunications service’?
Section 7 of the TIAA stipulates that a person shall not intercept, authorize, suffer or permit another person to intercept, or do any act or thing that will enable him or her or another person to intercept a communication passing over a ‘telecommunications system’.
Similar to a fax machine, an ANOM device did not transmit content, such as a typed message or attached image, which was simply placed on the device. Like the fax machine, they required a button to be pressed to activate what is clearly a ‘telecommunications system’. The fax will make the digital copy in preparation for sending, while the ANOM app would transmit the content of the prepared material to the ANOM device.
The ‘telecommunications system’ would also include the GPS location app, since GPS location information was also sent to law enforcement. Users did not enter GPS location information into the ANOM app they were using, so the same BCC argument should not be supported.
I can’t see the ANOM matters standing up when ultimately decided by the High Court. It is pretty clear law enforcement were trying to get around administrative difficulties. This position is supported by the FBI not using the ANOM system against US citizens. The FBI could not directly access the information in ANOM devices so Australia obliged. Australia then sent the information to a ‘secret’ third country who filtered the information, which I believe removed information relating to US citizens, before sending the information to the FBI in the USA.
We are now seeing the US policing the world, seeking extradition of non-US citizens for prosecution in the US under RICO, even if they have never been to or committed any offence in the USA.
This ‘intercept’ challenge is just the first of what I expect will be well over a decade of complicated legal arguments regarding how Operation Ironside and Operation Trojan Shield were even allowed to progress. I genuinely believe most prosecutions will be withdrawn. A lot of compensation will then be paid to those who would have spent years in gaol without trial or guilty verdict.