Could using open-source information online get you arrested for foreign interference?

Two weeks ago, 55-year-old Sydney businessman Alexander Csergo was arrested on charges of “recklessly” engaging in foreign interference^[1].

Csergo’s case reads like a spy novel. He allegedly met two Chinese people he knew as “Ken” and “Evelyn” in empty cafes in Shanghai, taking cash and agreeing to write reports^[2] for them about Australian defence, economic and security arrangements.

Csergo’s barrister, Bernard Collaery, has argued^[3] that he is innocent.

Collaery has some skin in the national security game. In 2018, he was charged with conspiring to release classified information after he allegedly asked a client (an ex-spy known only as Witness K) for information regarding an Australian spying operation. It wasn’t until last year that Attorney-General Mark Dreyfus dropped those charges^[4].

Csergo’s defence is that he only accessed publicly available material^[5]. He claims he cooperated with police, and even turned over his devices to the Australian Security Intelligence Organisation (ASIO) to prove his innocence.

Putting aside Csergo’s guilt or innocence, his case does raise an interesting question: what does Australia’s raft of new foreign interference laws mean for people who deal in open-source information, for example, academics, analysts or journalists?

Could you be breaking the law by doing the “wrong” Google search and posting your results online?

What does the law say?

In 2018, the federal government overhauled Australia’s national security laws^[6] in an attempt to address the growing threat posed by foreign actors. This overhaul included the introduction of nine novel offences for foreign interference.

The new offences include a crime of “reckless foreign interference^[7]” - the crime Csergo has been charged with. Csergo is only the second person^[8] to be charged since the new laws were introduced in 2018. He faces up to 15 years in prison if convicted.

Reckless foreign interference prohibits covert, deceptive or threatening conduct on behalf of, or in collaboration with, a “foreign principal”. The person must also have been reckless as to whether the conduct will:

• influence a political or governmental process or right,
• support intelligence activities of a foreign principal, or
• prejudice Australia’s national security.

Many of the terms used in this offence are wide-reaching or have not been clearly defined. This means the offence has the capacity to capture innocent people.

For example, covert or deceptive conduct could arise in relation to any part of a person’s actions, even if it only plays a minor role. So, for instance, an investigative journalist^[9] who uses hidden cameras or goes undercover to investigate a public interest story could be deemed as having acted covertly under the law.

Read more: Why Australia’s tough national security laws cannot stop foreign interference in our elections^[10]

And a “foreign principal” could not only include foreign governments, but also entities that are owned, directed or controlled by foreign governments (such as media organisations^[11], public universities^[12] or businesses). This means the offence has the capacity to capture, for example, Australian journalists, academics, researchers and businesspeople who work for or collaborate with an entity like this or its staff.

Lastly, the “recklessness” part of the law makes it extremely broad, criminalising people with a much lower level of personal culpability compared to offences that require an “intention” to commit a crime.

It is this element of the reckless foreign interference offence that could catch out people using open-source information online.

Could I inadvertently break the law?

It’s not a simple question to answer, but you might.

Ostensibly, this offence could be applied to anyone using open-source research to write an academic paper or policy report, provided it satisfies the other requirements under the law.

Even more at risk is “open source intelligence^[13]”, or the use of public information for intelligence assessments (think “market research” for spies). This is being used everywhere from the war in the Ukraine^[14] to combating hackers and identity thieves^[15]. Csergo’s case could set a precedent here.

Read more: Amid warnings of 'spy hives', why isn't Australia using its tough counter-espionage laws more?^[16]

One of the biggest pieces missing from Australia’s counter foreign interference strategy^[17] is an awareness and education effort on how these laws work in practice, as well as the “red flags” we should all look out for.

Individually, Australians also need to wake up to the reality that foreign interference is happening more often than we think.

Foreign interference, espionage and covert action aren’t abstract concepts. They’re real, and they’re happening in Australia. It is no coincidence the head of ASIO said our spy agencies are in “hand-to-hand combat^[18]”.

To be better protected, Australians should be alert, but not alarmed, and be more careful who they share information with. Just think like a spy: if I wanted to do something illegal with this information, what could I do?

The government also needs to consider whether these laws need to be clarified, reformed or even replaced. We will continue to need laws that prohibit other countries from interfering in our affairs. However, in doing so, we need to be careful we aren’t undermining the very freedoms Australia is known for.

References

1. ^{^} “recklessly” engaging in foreign interference (www.abc.net.au)
2. ^{^} taking cash and agreeing to write reports (www.abc.net.au)
3. ^{^} argued (www.theaustralian.com.au)
4. ^{^} dropped those charges (www.abc.net.au)
5. ^{^} only accessed publicly available material (www.afr.com)
6. ^{^} national security laws (www.legislation.gov.au)
7. ^{^} reckless foreign interference (www5.austlii.edu.au)
8. ^{^} only the second person (www.nytimes.com)
9. ^{^} investigative journalist (journals.sagepub.com)
10. ^{^} Why Australia’s tough national security laws cannot stop foreign interference in our elections (theconversation.com)
11. ^{^} media organisations (law.unimelb.edu.au)
12. ^{^} public universities (www.researchgate.net)
13. ^{^} open source intelligence (www.upguard.com)
14. ^{^} war in the Ukraine (www.abc.net.au)
15. ^{^} combating hackers and identity thieves (www.upguard.com)
16. ^{^} Amid warnings of 'spy hives', why isn't Australia using its tough counter-espionage laws more? (theconversation.com)
17. ^{^} counter foreign interference strategy (www.homeaffairs.gov.au)
18. ^{^} hand-to-hand combat (www.abc.net.au)