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General legal prohibitions on the use of technologies for covert surveillance have exceptions for public authorities such as law enforcement agencies, whose actions are regulated through warrants or similar authorisations. Covert investigations can be authorised as controlled operations where necessary, and the legality of some kinds of covert online techniques, such as in online child exploitation investigations, have been affirmed by court decisions in Australia.
More advanced covert techniques such as the “Sweetie 2.0” chatbot developed by the Dutch non-government organisation, Terre des Hommes (TdH), allow for automated covert online investigations. The legality of this method of evidence collection was analysed in the recently published Legal Aspects of Sweetie 2.0 and associated country reports. The conclusion for Australia was that such techniques could lawfully be used by law enforcement agencies, with appropriate judicial oversight. However, questions of admissibility still remain to be tested in court proceedings.
Individuals, including victims and vigilantes, sometimes resort to online deception or covert methods in order to respond to online threats. Is it lawful to do so, and can this jeopardise investigations and prosecution by public authorities? Admissibility of evidence obtained unlawfully or improperly rests on judicial discretion, but such evidence is often seen in court.
Finally, although online service providers such as social media platforms enjoy the protection of “safe harbours” under their regulatory regimes, pressure is growing on them to take proactive measures to identify and block illegal and harmful content, and to assist more actively in criminal and national security investigations. This may see increasing uses of covert online surveillance.
About the speaker
Dr Gregor Urbas is a barrister and former legal academic, most recently as Associate Professor at the University of Canberra, where he taught Criminal Law and Procedure, Cybercrime and Evidence Law. He has written extensively on criminal justice issues. He previously held positions at the Australian National University (ANU), the Australian Institute of Criminology (AIC) and the Law Council of Australia, and was an Adjunct Associate Professor at the ANU College of Law and at Simon Fraser University in Vancouver, Canada, as well as a Visiting Fellow at the Tilburg Institute for Law, Society and Technology (TILT) at Tilburg University, Netherlands.