‘Draconian’: Climate activists banned from encrypted apps

Bail is increasingly being used as a tool to "chill" activism rather than for its intended purpose, lawyers say.

Environmental activists in New South Wales have been banned from using encrypted messaging apps and ordered to hand over smartphone passwords to the police as part of “unprecedented” and “draconian” bail conditions.

There are concerns that this is part of a growing trend of onerous bail conditions being imposed to have a “chilling” impact on individuals, rather than the intended purpose of bail rules.

Seven Blockade Australia activists were arrested last month when armed police raided a private property linked to the individuals ahead of a week of action by the group, and were later released on bail.

At least one of these people, a woman who was staying at the property where the protesters were camped and was charged with intimidating police, has been prohibited from using encrypted messaging apps such as WhatsApp as part of her bail conditions.

“These bail conditions are unprecedented in Australia for peaceful protestors,” a Legal Observers NSW representative says. “The use of these conditions to prevent contact with people who engage in protest action hasn’t been seen in Australia before. 

“The conditions regarding encrypted apps and mobile phones have nothing to do with her charges and are a gratuitous attempt to stifle her capacity to participate in protest.”

The activist has also been prohibited from possessing more than one phone and must provide to the police details of the subscription service and mobile phone number of that device.

She must also produce her computer, laptop and mobile phone on demand to the police and provide the relevant passwords and passcodes, and produce any device on request by police to check compliance with the bail conditions.

NSW Legal Observers are working with a lawyer to seek a bail variation from a Magistrate.

A chilling effect

These conditions are not in line with the purpose of bail, Australian Lawyers Alliance national criminal justice spokesperson Greg Barns says.

“The Alliance is concerned that conditions imposed under bail laws in NSW are having a chilling effect on the right of individuals to communicate and associate,” Barns says.

“Bail conditions such as bans on communicating with friends, being asked to hand over passwords for devices to police and 9pm curfews are well beyond conditions imposed for serious criminal allegations such as burglary or assaults.

“We need to remember the purpose of bail is to ensure individuals turn up to court. And it is imperative to remember individuals have a presumption of innocence while on bail, unless they have entered a plea of guilty or been found by a court to be guilty of an offence.”

A similar restriction on using encrypted messaging apps was imposed on a man earlier this year in a domestic violence case in order to enforce a no-contact order.

“The imposition of bail conditions like these should make us think twice about how slippery the slope into authoritarian policing is,” the Legal Observers NSW rep says. “Knowing that police will use their discretion to impose conditions that prevent participation in peaceful protest is chilling.

“The implications for democratic expression are particularly concerning given the widespread digital surveillance of protestors by police, including through internal access to activists’ social media accounts and surveillance of activist activity online.

“The space for truly private communication is already so small and lack of access to encrypted apps makes it almost non-existent.”

‘Draconian’

These “draconian” bail conditions are a “huge overreach” by the police, Digital Rights Watch’s Tom Sulston says. The organisation said that the police seized more than 40 devices during the raid on the Blockade Australia activists.

“The power to seize and search a phone on demand is extraordinarily violating and obviously intimidating,” Sulston says.

The constant digital surveillance will have a harmful impact on the individual, Legal Observers NSW say.

“The biggest impact of bail conditions like this is psychological,” they say. “It’s very unsettling to know you have to produce all your passwords to police at any time. It’s very unsettling to risk being brought before court for using a common app like WhatsApp.

“This kind of mandated self-policing and exposure to police intervention into your digital privacy is very difficult to experience.”

Electronic Frontiers Australia said a prohibition on having access to an encrypted communication device is an “outrageous condition to impose on people in 2022”.

“Encryption is vital for preserving privacy of communications, such as between an accused and their legal representatives. Privacy is a vital part of due process,” the group says.

“This condition must be lifted immediately so that the accused can privately and securely communicate with their legal representatives without having to meet in person during a global pandemic.”