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This article explores the challenges of digital constitutionalism in practice through a case study examining how concepts of privacy and security have been framed and contested in Australian cyber security and telecommunications policy-making over the last decade. The Australian Government has formally committed to 'Internet freedom' norms, including privacy, through membership of the Freedom Online Coalition. Importantly, however, this commitment is non-binding and designed primarily to guide the development of policy by legislators and the executive government. Through this analysis, we seek to understand if, and how, principles of digital constitutionalism have been incorporated at the national level. Our analysis suggests a fundamental challenge for the project of digital constitutionalism in developing and implementing principles that have practical or legally binding impact on domestic telecommunications and cyber security policy. Australia is the only major Western liberal democracy without constitutional human rights or a legislated bill of rights at the federal level; this means that the task of 'balancing' what are conceived as competing rights is left only to the legislature. Our analysis shows that despite high-level commitments to privacy as per the Freedom of Online Coalition, individual rights are routinely discounted against collective rights to security. We conclude by arguing that, at least in Australia, the domestic conditions limit the practical application and enforcement of digital constitutionalism's norms.

This article explores the challenges of digital constitutionalism in practice through a case study examining how concepts of privacy and security have been framed and contested in Australian cyber security and telecommunications policy-making over the last decade. The Australian Government has formally committed to 'Internet freedom' norms, including privacy, through membership of the Freedom Online Coalition. Importantly, however, this commitment is non-binding and designed primarily to guide the development of policy by legislators and the executive government. Through this analysis, we seek to understand if, and how, principles of digital constitutionalism have been incorporated at the national level. Our analysis suggests a fundamental challenge for the project of digital constitutionalism in developing and implementing principles that have practical or legally binding impact on domestic telecommunications and cyber security policy. Australia is the only major Western liberal democracy without constitutional human rights or a legislated bill of rights at the federal level; this means that the task of 'balancing' what are conceived as competing rights is left only to the legislature. Our analysis shows that despite high-level commitments to privacy as per the Freedom of Online Coalition, individual rights are routinely discounted against collective rights to security. We conclude by arguing that, at least in Australia, the domestic conditions limit the practical application and enforcement of digital constitutionalism's norms.

Over the past decade, the Five Eyes Intelligence community has argued cryptosystems with end-to-end encryption (E2EE) are disrupting the acquisition and analysis of digital evidence. They have labelled this phenomenon the ‘problem of going dark’. Consequently, several jurisdictions have passed ‘responsible encryption’ laws that limit access to E2EE. Based upon a rhetorical analysis (Cunningham in Understanding rhetoric: a guide to critical reading and argumentation, BrownWalker Press, Boca Raton, 2018) of official statements about ‘going dark’, it is argued there is a need for a domain-specific principle of cryptographic justice to reorient the debate away from competing technocratic claims about the necessity, proportionality, and accountability of digital surveillance programs. This article therefore specifies a principle of cryptographic justice by adapting more general norms of information justice to decision-making about encryption law and policy. The resulting principle is that encryption laws and policies should be designed to empower the comparatively powerless to protect themselves from domination (i.e., morally arbitrary forms of surveillance). It is argued this principle can reorient decision-making about encryption law and policy towards consideration of how cryptography impacts systems-level power dynamics within information societies.

Foucault’s theory of state social control contrasts societal responses to leprosy, where deviants are exiled from society but promised freedom from social demands, and the plague, where deviants are controlled and surveyed within society but receive some state assistance in exchange for their cooperation.In this paper, I analyze how low-income fathers in the United States simultaneously experience social control consistent with leprosy and social control consistent with the plague but do not receive the social benefits that Foucault associates with either status.Through interviews with 57 low-income fathers, I investigate the role of state surveillance in their family lives through child support enforcement, the criminal justice system, and child protective services.Because they did not receive any benefits from compliance with this surveillance, they resisted it, primarily by dropping “off the radar.”Men justified their resistance in four ways: they had their own material needs, they did not want the child, they did not want to separate from their child’s mother or compliance was unnecessary.This resistance is consistent with Foucault’s distinction between leprosy and the plague.They believed that they did not receive the social benefits accorded to plague victims, so they attempted to be treated like lepers, excluded from social benefits but with no social demands or surveillance.

The rapid growth in the availability of information and communications technologies has also expanded opportunities to commit cybercrime. Law enforcement officers are often the first responders to such incidents. Internationally, research has revealed how police preparedness to respond to cybercrime is mediated by organizational policies and procedures, as well as characteristics such as education, gender, and previous training for cybercrime investigations. However, there has been limited research in an Australian context examining police preparedness to respond to cybercrime. As such, this article examines the preparedness of Australian police personnel to respond to cybercrime incidents drawing on surveys with two state-wide police agencies ( n = 422). Here, we examine the prevalence of cybercrime training across both agencies, levels of individual and organizational confidence about responding to cybercrime incidents, and their views about enhancing responses to cybercrime. The results suggest only half of the surveyed personnel have received some cybercrime-related training, with significantly less reporting specific instruction about how to receive and direct incident reports and manage digital crime scenes. Further, while personnel are modestly confident in their individual capabilities to respond to cybercrime incidents, they lack comparative confidence in their organizations and yearn for more resourcing and professional development. Implications for police resourcing, training, and practices are discussed.

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