Civil liberty groups are concerned about bail restrictions that ban the use of encrypted apps and devices.(Unsplash: Yura Fresh)
Since late June, Greg Rolles must produce on demand his computer and mobile phone for police inspection, and tell them his passwords.
- Some charged Blockade Australia activists are banned from using encrypted apps
- Their bail conditions also stipulate they must unlock their devices for police
- Civil liberty groups have criticised the rules, claiming they are “unusual” and “extreme”
He is not allowed to use any encrypted messaging apps, like Signal or WhatsApp. He can only have one mobile phone.
And there is a list of 38 people, many of whom are his friends, who he’s not allowed to associate with in any way — even, another activist found, liking a post on social media.
These are the strict technology-related bail conditions imposed on some Blockade Australia climate protesters — a development legal experts have criticised as “unusual” and “extreme”.
The climate action network was linked to a series of protests earlier this year, targeting ports and freight trains in New South Wales, and a property where activists were gathered was raided by police.
More than 30 people were arrested for unauthorised protests and disrupting traffic, among other charges, according to police statements.
In April, NSW parliament passed laws with steep fines and jail time for activities that “shut down major economic activity”, including protesting illegally on public roads, rail lines, tunnels, bridges and industrial estates.
A Blockade Australia protester is arrested by NSW Police. Eleven activists were arrested following action in Sydney on June 27.(Twitter: Blockade Australia)
Mr Rolles was arrested in late June, when he was pulled off the street in Sydney for allegedly blocking roads and obstructing traffic.
As soon as he was released under the bail conditions, he deleted Signal and lost many of his contacts. Because he can’t use WhatsApp, he said he can no longer communicate with people in Afghanistan for whom he was organising assistance with his church.
The vagueness of the encryption ban is also a concern for him. As well as barring specific apps like Signal and Telegram, it states “the defendant is prohibited from possessing or having access to an encrypted communications device and/or possessing an encrypted application/media application”.
Large swathes of the internet are encrypted, which simply means that information is converted into code to protect it from unwanted access. Apps from online banking to streaming services are typically encrypted.
“Encryption is everywhere because it’s a fundamental part of keeping modern communications technology secure and functional,” a spokesperson for Electronic Frontiers Australia said.
“[That includes] essentially any modern device, including laptops, mobile phones, ATMs, TVs, PlayStations, and government websites such as myGov, Medicare, and Centrelink.”
Mr Rolles said he was worried the provision could be read in its most strict interpretation.
“I’m quite afraid of how that’ll be enforced.
“I definitely always have that kind of background anxiety — will the police just knock on my door?
“If a police officer was a bit annoyed at me, could they say, ‘you’ve been making phone calls, that’s encrypted’?”
Mr Rolles has pled not guilty and is awaiting trial.
Facebook ‘thumbs up’ lands activist in hot water
Defence lawyer Mark Davis, who is representing some of the Blockade Australia activists, said the vagueness of the prohibition was concerning.
“It used to name the things you couldn’t have, and then they made it all encrypted communication,” he said.
“It could be you’re on your PlayStation.”
He also takes issue with the non-association rules, and the lack of specificity about what an “association” might be.
Mr Davis said one of his clients had been pulled in by police after they reacted with a “thumbs up” emoji to Facebook comments shared by friends who were also allegedly part of Blockade Australia activities.
“A thumbs up, it’s not much in terms of communication,” the activist told the ABC.
“The fact that the state finds that threatening — people talking and sharing our ideas — is very telling.”
No breach of bail charges were ultimately pursued over the “likes”.
Jane Sanders, principal solicitor at the Shopfront Youth Legal Centre, said such bail conditions were not overly common in her experience, apart from in cases of serious offences like drug trafficking, child abuse material or repeated allegations of using a carriage service to menace or offend.
“It would be those sorts of things where technology is used to facilitate what [police] allege to be quite serious crimes,” she said.
In the case of these climate protests, some of the alleged conduct is “potentially serious and potentially very disruptive”, Ms Sanders said.
She said if she were to play devil’s advocate, perhaps police or courts might think it’s necessary to stop the group from communicating with each other.
Nevertheless, in her view, bail is about managing risk while someone awaits trial.
“To effectively shut down the right to political communication with these conditions, it seems extreme to me,” Ms Sanders said.
‘A shit way to live’
NSW Council for Civil Liberties president Josh Pallas suggested such restrictions on communication and technology abused the purposes of the Bail Act.
“It is meant to stop people from not appearing in court, from committing other serious offences, or perceived danger to the community, or interfering with witnesses,” he said of bail law.
Blockade Australia have also undertaken protests targeting coal transports in the Port of Newcastle, disrupting operations.(Supplied: Blockade Australia)
In the case of climate protests, he doesn’t see the same risks.
“They are peacefully protesting. Where is the threat to security?”
Likewise, forcing someone to ensure all their personal information is open to police surveillance is “an extraordinary step to take”, according to Alice Drury, legal director of the Human Rights Law Centre.
She is also concerned about how loosely written the bail conditions are.
“[They’re] certainly … very broadly drafted bail conditions that make it very hard for people to understand and comply with,” she said.
“Police discretion should never be that unfettered.”
For Mr Rolles, a dedicated climate activist, it’s led to continuous worry about whether he might unwittingly run afoul of the rules by using his phone or the internet.
“I’ve always got in the back of my head where my meds are, and a top that I’ll be able to wear in the watch house to keep me warm,” he said.
“It’s a shit way to live.”
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