(1) For the purposes of this Part, a person takes control of an online account if the person takes one or more steps that result in the person having exclusive access to the account.
(2) The following are examples of such steps:
(a) using existing account credentials to alter one or more account credentials;
(b) removing a requirement for two‑factor authentication;
(c) altering the kind or kinds of account credentials that are required to access or operate the account.
3ZZUM Appropriate authorising officer
Australian Federal Police
(1) For the purposes of this Part, an appropriate authorising officer of the Australian Federal Police is:
(a) the chief officer of the Australian Federal Police; or
(b) a Deputy Commissioner of the Australian Federal Police; or
(c) a senior executive AFP employee who is authorised under subsection (2).
(2) The chief officer of the Australian Federal Police may authorise, in writing, a person who is a senior executive AFP employee to be an appropriate authorising officer of the Australian Federal Police for the purposes of this Part.
ACC
(3) For the purposes of this Part, an appropriate authorising officer of the ACC is:
(a) the chief officer of the ACC; or
(b) an executive level member of the staff of the ACC who is authorised under subsection (4).
(4) The chief officer of the ACC may authorise, in writing, a person who is an executive level member of the staff of the ACC to be an appropriate authorising officer of the ACC for the purposes of this Part.
Division 2—Account takeover warrants
3ZZUMA Sunsetting
This Division ceases to have effect 5 years after it commences.
3ZZUN Application for account takeover warrant
(1) A law enforcement officer may apply to a magistrate for the issue of an account takeover warrant if the law enforcement officer suspects on reasonable grounds that:
(a) one or more relevant offences have been, are being, are about to be, or are likely to be, committed; and
(b) an investigation into those offences is being, will be, or is likely to be, conducted; and
(c) taking control of one or more online accounts (the target accounts) is necessary, in the course of that investigation, for the purpose of enabling evidence to be obtained of the commission of those offences.
(2) An application for an account takeover warrant may be made:
(a) in person (such an application is a formal application); or
(b) if the applicant believes that it is impracticable for the application to be made in person—by telephone, email, fax or any other means of communication (such an application is an urgent application).
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(2A) An application:
(a) must specify:
(i) the name of the applicant; and
(ii) the nature and duration of the warrant sought; and
(b) subject to this section, must be supported by an affidavit setting out the grounds on which the warrant is sought.
Unsworn applications
(2B) If a law enforcement officer believes that:
(a) taking control of the target accounts is immediately necessary, in the course of the investigation mentioned in paragraph (1)(c), for the purpose of enabling evidence to be obtained of the commission of the offences mentioned in that paragraph; and
(b) it is impracticable for an affidavit to be prepared or sworn before an application for a warrant is made;
an application for an account takeover warrant under subsection (1) may be made before an affidavit is prepared or sworn.
(2C) If subsection (2B) applies, the applicant must:
(a) provide as much information as the magistrate considers is reasonably practicable in the circumstances; and
(b) not later than 72 hours after the making of the application, send a duly sworn affidavit to the magistrate, whether or not a warrant has been issued.
(2D) If:
(a) subsection (2B) applies; and
(b) transmission by fax is available; and
(c) an affidavit has been prepared;
the person applying must transmit a copy of the affidavit, whether sworn or unsworn, to the magistrate who is to determine the application.
(3) An application (whether formal or urgent) must provide sufficient information to enable the magistrate to decide whether or not to issue the warrant.
(4) A magistrate may require an applicant to provide such additional information as is necessary for the proper consideration of the application.
(5) As soon as practicable after making an urgent application that was not made in writing, the applicant must:
(a) make a written record of the application; and
(b) give a copy of the record to the magistrate to whom the application was made.
3ZZUP Determining the application
(1) A magistrate may issue an account takeover warrant if satisfied that there are reasonable grounds for the suspicion founding the application for the warrant.
(2) In determining whether an account takeover warrant should be issued, the magistrate must have regard to:
(a) the nature and gravity of the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is sought; and
(b) the existence of any alternative means of obtaining the evidence sought to be obtained; and
(c) the extent to which the privacy of any person is likely to be affected; and
(d) the likely evidentiary value of any evidence sought to be obtained; and
(da) the extent to which the execution of the warrant is likely to impact on persons lawfully using a computer, so far as that matter is known to the magistrate; and
(db) the extent to which the execution of the warrant is likely to cause a person to suffer a temporary loss of:
(i) money; or
(ii) digital currency; or
(iii) property (other than data);
so far as that matter is known to the magistrate; and
(dc) if:
(i) the magistrate believes on reasonable grounds that each target account is held by a person who is working in a professional capacity as a journalist or of an employer of such a person; and
(ii) the alleged relevant offence, or each of the alleged relevant offences, in respect of which the warrant is sought is an offence against a secrecy provision;
whether the public interest in issuing the warrant outweighs:
(iii) the public interest in protecting the confidentiality of the identity of the journalist’s source; and
(iv) the public interest in facilitating the exchange of information between journalists and members of the public so as to facilitate reporting of matters in the public interest; and
(e) any previous warrant sought or issued under this Division in connection with the same online account; and
(f) any previous warrant sought or issued under this Division in connection with the same alleged relevant offence or the same alleged relevant offences.
(3) For the purposes of having regard to the nature and gravity of the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is sought, the magistrate must give weight to the following matters:
(a) whether the conduct constituting the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is sought amounts to:
(i) an activity against the security of the Commonwealth; or
(ii) an offence against Chapter 5 of the Criminal Code;
(b) whether the conduct constituting the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is sought amounts to:
(i) an activity against the proper administration of Government; or
(ii) an offence against Chapter 7 of the Criminal Code;
(c) whether the conduct constituting the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is sought:
(i) causes, or has the potential to cause, serious violence, or serious harm, to a person; or
(ii) amounts to an offence against Chapter 8 of the Criminal Code;
(d) whether the conduct constituting the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is sought:
(i) causes, or has the potential to cause, a danger to the community; or
(ii) amounts to an offence against Chapter 9 of the Criminal Code;
(e) whether the conduct constituting the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is sought:
(i) causes, or has the potential to cause, substantial damage to, or loss of, data, property or critical infrastructure; or
(ii) amounts to an offence against Chapter 10 of the Criminal Code;
(f) whether the conduct constituting the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is sought involves, or is related to, the commission of:
(i) transnational crime; or
(ii) serious crime; or
(iii) organised crime;
that is not covered by any of the preceding paragraphs.
(4) Subsection (3) does not limit the matters that may be considered by the magistrate.
(5) To avoid doubt, this Act does not prevent an account takeover warrant from being issued in a case where the conduct constituting the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is sought is not covered by subsection (3).
(6) For the purposes of this section, secrecy provision means a provision of a law of the Commonwealth or of a State that prohibits:
(a) the communication, divulging or publication of information; or
(b) the production of, or the publication of the contents of, a document.
3ZZUQ What must an account takeover warrant contain?
(1) An account takeover warrant must:
(a) state that the magistrate issuing the warrant is satisfied of the matters referred to in subsection 3ZZUP(1) and has had regard to the matters referred to in subsection 3ZZUP(2); and
(b) specify:
(i) the name of the applicant; and
(ii) the name of the law enforcement officer who, unless the officer inserts the name of another law enforcement officer in the warrant, is to be responsible for executing the warrant; and
(iii) the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is issued; and
(iv) the date the warrant is issued; and
(v) the period during which the warrant is in force (see subsection (3)); and
(vi) each target account; and
(vii) for each target account where the holder of the target account is known to the applicant—the holder; and
(viii) for each target account where one or more users of the target account (other than the holder of the target account) are known to the applicant—those users; and
(ix) any conditions subject to which things may be done under the warrant; and
(c) set out an outline of the investigation to which the warrant relates.
(2) For the purposes of subparagraph (1)(b)(vi), a target account may be specified by identifying one or more matters or things that are sufficient to identify the target account.
(3) A warrant may only be issued for a period of no more than 90 days.
Note: The execution of a warrant may be discontinued earlier—see section 3ZZUU.
(4) A warrant must be signed by the person issuing it and include the person’s name.
3ZZUR What an account takeover warrant authorises
(1) An account takeover warrant must authorise the doing of specified things (subject to any restrictions or conditions specified in the warrant) in relation to each target account.
(2) The things that may be specified are any of the following that the magistrate considers appropriate in the circumstances:
(a) taking control of the target account at any time while the warrant is in force, if doing so is necessary, in the course of the investigation to which the warrant relates, for the purpose of enabling evidence to be obtained of the commission of the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is issued;
(b) using:
(i) a computer; or
(ii) a telecommunications facility operated or provided by the Commonwealth or a carrier; or
(iii) any other electronic equipment; or
(iv) a data storage device;
for the purpose of taking control of the target account as mentioned in paragraph (a);
(c) if necessary for the purpose of taking control of the target account as mentioned in paragraph (a):
(i) accessing account‑based data to which the target account relates; or
(ii) adding, copying, deleting or altering account credentials to which the target account relates; or
(iii) adding, copying, deleting or altering data in a computer;
(d) if, having regard to other methods (if any) of taking control of the target account which are likely to be as effective, it is reasonable in all the circumstances to do so:
(i) using a communication in transit for the purpose of taking control of the target account as mentioned in paragraph (a); and
(ii) if necessary to achieve that purpose—adding, copying, deleting or altering data in the communication in transit;
(e) copying any account‑based data to which the target account relates, and that:
(i) appears to be relevant for the purposes of determining whether the account‑based data is covered by the warrant; or
(ii) is covered by the warrant;
(f) copying any account credentials to which the target account relates;
(g) any other thing reasonably incidental to any of the above.
(3) For the purposes of paragraph (2)(e), if:
(a) access has been obtained to account‑based data; and
(b) the account‑based data is subject to a form of electronic protection;
the account‑based data is taken to be relevant for the purposes of determining whether the account‑based data is covered by the warrant.
When account‑based data is covered by a warrant
(4) For the purposes of this section, account‑based data is covered by a warrant if access to the data is necessary, in the course of the investigation to which the warrant relates, for the purpose of enabling evidence to be obtained of the commission of the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is issued.
Certain acts not authorised
(5) Subsection (2) does not authorise the addition, deletion or alteration of data, or the doing of any thing, that is likely to:
(a) materially interfere with, interrupt or obstruct:
(i) a communication in transit; or
(ii) the lawful use by other persons of a computer;
unless the addition, deletion or alteration, or the doing of the thing, is necessary to do one or more of the things specified in the warrant; or
(b) cause any other material loss or damage to other persons lawfully using a computer.
Concealment of access etc.
(6) If any thing has been done under:
(a) an account takeover warrant; or
(b) this subsection;
then, in addition to the things specified in the warrant, the warrant authorises the doing of any of the following:
(c) any thing reasonably necessary to conceal the fact that any thing has been done under the warrant or under this subsection;
(d) if, having regard to other methods (if any) of doing the things mentioned in paragraph (c) which are likely to be as effective, it is reasonable in all the circumstances to do so:
(i) using a computer or a communication in transit to do those things; and
(ii) if necessary to achieve that purpose—adding, copying, deleting or altering other data in the computer or the communication in transit;
(e) any other thing reasonably incidental to any of the above;
at the following time:
(f) at any time while the warrant is in force or within 28 days after it ceases to be in force;
(g) if none of the things mentioned in paragraph (c) are done within the 28‑day period mentioned in paragraph (f)—at the earliest time after that 28‑day period at which it is reasonably practicable to do the things mentioned in paragraph (c).
(7) Subsection (6) does not authorise the doing of a thing that is likely to:
(a) materially interfere with, interrupt or obstruct:
(i) a communication in transit; or
(ii) the lawful use by other persons of a computer;
unless the doing of the thing is necessary to do one or more of the things specified in subsection (6); or
(b) cause any other material loss or damage to other persons lawfully using a computer.
Statutory conditions
(8) An account takeover warrant is subject to the following conditions:
(a) the warrant must not be executed in a manner that results in loss or damage to data unless the damage is justified and proportionate, having regard to the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is issued;
(b) the warrant must not be executed in a manner that causes a person to suffer a permanent loss of:
(i) money; or
(ii) digital currency; or
(iii) property (other than data).
(9) Subsection (8) does not, by implication, limit the conditions to which an account takeover warrant may be subject.
(10) The conditions set out in subsection (8) must be specified in an account takeover warrant.
3ZZUS Variation of account takeover warrant
(1) A law enforcement officer to whom an account takeover warrant has been issued may, by writing, apply at any time before the expiry of the warrant:
(a) for an extension of the warrant for a period of no more than 90 days after the day the warrant would otherwise expire; or
(b) for a variation of any of the other terms of the warrant.
(2) The application is to be made to a magistrate and must be accompanied by the original warrant.
(3) The magistrate may, by writing, grant an application if satisfied that the matters referred to in subsection 3ZZUP(1) still exist, having regard to the matters in subsection 3ZZUP(2).
(4) If the magistrate grants the application, the magistrate must endorse the new expiry date or the other varied term on the original warrant.
(5) An application may be made under this section more than once.
3ZZUT Revocation of account takeover warrant
(1) If an account takeover warrant is in force, a magistrate may, by instrument in writing, revoke the warrant.
(2) If the circumstances set out in subsection 3ZZUU(2) apply in relation to an account takeover warrant: