The legality of the encrypted app An0m, which Australian federal police used to run a global crime sting, is being challenged in the courts a year after its highly publicised unveiling.
In the 12 months since the AFP and FBI let the world know they were behind an encrypted phone known as An0m, it has led to 340 alleged offenders being charged in Australia with 1,011 offences. The number of arrests globally is over 1,000.
An An0m device wasn’t a phone you could walk into a store and buy. You had to know someone who would sell it to you, and it cost $1,700 for the handset, with a $1,250 annual subscription. That money, unbeknown to the buyers, went to law enforcement agencies operating the app, and capturing every message.
The phone couldn’t make calls or browse the internet, but users could open the phone’s calculator, and enter a specific sum to be launched into a secret messaging app.
It was in this app that law enforcement agencies were able to intercept 19.7m messages between 2018 and 2021 that led to the hundreds of arrests globally, as part of what the AFP dubbed Operation Ironside.
Since the initial fanfare from the AFP and FBI, questions have been raised about the legal grounds on which the messages were intercepted and the warrants used.
This has led to the legality being challenged directly in Australian courts, as the cases of those arrested as part of Operation Ironside begin to get under way.
A lawyer acting for one of those arrested told a court in Sydney in June that up to 30 people who were charged based on messages in the app were set to question experts about how the messages were stored and then provided to the AFP. Those matters will be heard in a Sydney local court in September.
“There is a growing opinion among a number of very senior defence barristers in this state, and in other states, that the authorisation obtained was not sufficient and the evidence may not be legally obtained,” lawyer Elie Rahme reportedly told the supreme court.
In South Australia, Michael Abbott QC, acting for one of two men before the SA supreme court, reportedly alleged the operation was illegal.
“There is serious illegality to what the AFP was doing on their own and with the help of the FBI,” he said.
“Under what law of Australia were the AFP allowed to act?”
Justice Sandi McDonald said last week specialists working for three men charged as part of the sting will be able to access the source code for the app in “controlled and secure conditions”.
According to Vice, which has reportedly obtained the source code for the app, law enforcement were able to intercept every single message over the app via a blind carbon copy function that passed on every message sent over the app to another account.
Guardian Australia understands it is expected lawyers will question whether the right warrants were obtained for the operation. Warrants were obtained under the Surveillance Devices Act, but lawyers believe the warrants potentially should have been obtained under the Telecommunications (Interception and Access) Act.
“This is stuff that simply was never contemplated by law enforcement when they were setting up this legislation in parliament, because it’s something other than tapping onto a telephone,” Rick Sarre, professor of law and criminal justice at the University of South Australia, said. “And it’s quite something different from simply looking at metadata.”
The Law Council of Australia president, Tass Liveris, said while the council supports disrupting organised crime and recognises the need to modernise investigatory functions, it is important there are appropriate oversight mechanisms and legislative checks on how electronic surveillance is undertaken by law enforcement.
“In our view, a fundamental redesign of electronic surveillance laws are needed, rather than incremental amendments in the nature of patching specific issues identified through operational activities,” he said.
An AFP spokesperson said it would not be appropriate to comment while the matter is before the courts.
