ASIC Looks to Gain Access to Communications, Data in Fight to Police Markets

A taskforce feels that ASIC requires broader access to telecommunications to combat fraud and market abuse.

The Australian Securities and Investments Commission (ASIC) may be garnering more administrative authority in policing domestic markets. Strict telecommunications access, seen largely as a protection for consumers and privacy rights in Australia, has been targeted as an area for better executing investigations against fraudsters.

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Currently, ASIC and virtually all other regulatory authorities adhere to legal statutes that prohibit the intercepting of telecommunications, emails, or other mediums of communication in their entirety. While there are isolated exceptions in recent years, i.e. the Patriot Act in the United States, among others, these protections have been largely insulated, ensuring strict privacy.

This could be changing in Australia however, with the country’s Telecommunications Interception and Access Act (TIA Act: 1979) poised for a potential change. The act governs access to telecommunications interception, data, subscriber details, historical text messages, voicemails, and emails. Presently, the TIA Act prohibits the interception of and unlawful access to communications without the knowledge of the parties to the communication.

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Authorities have been able to circumvent the TIA Act previously with the use of warrants to authorize access in specific circumstances. Importantly, ASIC is not classified as an interception agency, which limits its powers. The act does leave the door open to serious offences against the 2001 Corporations Act, which includes abuses of insider trading, market manipulation, and financial services fraud that ASIC has jurisdiction in pursuing.

However, ASIC’s power to conduct cooperative investigations with interception agencies and Australian Federal police is limited by this statute given that ASIC cannot obtain this information through other legal bodies without its own warrant. This has hampered its ability in the past to conduct streamlined investigations.

New access?

Consequently, an ASIC Enforcement Review Taskforce was established to weigh its current suite of regulatory tools and capabilities, including its access to the aforementioned data. Following a preliminary analysis by the taskforce, the group feels that ASIC should be eligible to garner access to intercept telecommunications and prosecute serious offences.

However, the taskforce also recognizes the potential for infringing on privacy rights and feels that ASIC should only garner access to information proportionate to the seriousness of the misconduct. As such, the taskforce will seek further industry and community feedback before any measures or rollbacks in legal mandates can occur.

The taskforce’s findings can be outlined in full in ASIC’s recent consultation paper.

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