NSW Police has revealed it tested powers afforded by Australia’s assistance and access laws on an unnamed “overseas provider”, gleaning information about an account holder as well as the provider’s technical capabilities.

The state police agency disclosed the test case in answers to questions on notice [pdf] arising from a recent parliamentary hearing.

It used a “technical assistance request” or TAR on the overseas provider. 

TARs are used to seek “voluntary” assistance from service providers. They don’t force service providers to open access to systems or information like other forms of assistance available under the legislation, though they are still considered to be coercive instruments.

NSW Police said that the approach it made to an overseas provider using the controversial law “could not have been made outside” of that regime.

“Under a TAR, NSW Police engaged an overseas provider to determine its capability to assist police,” the agency said.

“This request could not have been made outside of the TOLA [Telecommunications and other Legislation Amendment – Assistance and Access] regime, as the company’s law enforcement guide states an account holder could be informed of requests for their information by law enforcement authorities. 

“The TOLA regime permitted NSW Police to make those enquiries using accompanying non-disclosure provisions. 

“NSW Police was able to obtain information about some of the provider’s capability which was previously not known.”

The agency said TOLA laws had generally made it easier to deal with providers and particularly to get more information out of them than was previously possible.

“The type of assistance sought under some TARs was not previously requested before the TOLA regime,” NSW Police said. 

“Privacy protections, no profit/no loss costs agreements, and protection from civil liability enabled police to make requests under the TOLA regime they would not previously have made.”

NSW Police said two of the 14 providers targeted with TARs by the agency cited non-disclosure and indemnity clauses as being conducive to cooperation.

“Although these providers assisted NSW Police in the past without the need for a TAR, the amount of information provided, and the extent of the providers’ assistance was greater under a TAR than was traditionally sought or provided,” the agency said.

NSW Police said it had also previously tried to use Section 313 of the Telecommunications Act – which has law enforcement assistance provisions – instead of issuing a TAR, but found it to be less effective.

“The [targeted] provider advised police that due to the type of assistance requested, they would only provide the assistance under a TAR,” NSW Police said.

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