Lawyers for two alleged senior members of an organised crime group claim AN0M app was illegal
An encrypted app at the heart of an international law enforcement operation was illegal from the start and federal police have been breaking the law, lawyers for two alleged senior organised crime figures claim.
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An international law enforcement operation targeting transnational organised crime was “illegal” and “unlawful” from the start, the Supreme Court has heard.
Barristers for two men alleged to be senior organised crime figures and charged with offences including conspiracy to murder have taken aim at the Australian Federal Police for running what they described as an illegal and invasive police operation.
The two men, along with a third, are part of a test case being run in the South Australian Supreme Court which will set the stage for potentially dozens of trials to follow.
The pre-trial arguments on the validity of thousands of messages sent over the encrypted AN0M app is more important legally than the trial itself – which involves allegations of drug trafficking and possessing high power firearms.
On Monday, Michael Abbott QC, for one of the men, criticised the way Operation Ironside – the name given to the creation of the app and surveillance of messages sent and received – was run.
“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?”
Mr Abbott and David Edwardson QC, acting for the other man, have issued subpoenas for huge swathes of documents falling into at least 56 different categories from state and federal police and prosecutors.
The AN0M app was developed by a confidential human source named in court documents as “88667” following the dismantling of the Phantom Secure platform in 2018.
The man was one of five people arrested in San Diego for his role in the Phantom operation.
Mr Abbott said that in order to secure immunity from prosecution 88667 offered to deliver to authorities the AN0M platform which he had already developed.
The AN0M platform was installed on specific phones that had no other purpose than offering encrypted and secure sending and receiving of messages.
In exchange for immunity as well as US$120,000 ($176,000) in remuneration and a further US$60,000 ($235,000) for expenses, 88667 gave the FBI a master keys to the app.
“There was no difference between the AN0M app and the Phantom app,” Mr Abbott said.
“The Phantom app was illegal and unlawful.”
The court heard that copies of the messages sent over the app were diverted to a server, possibly in Romania, where they were decoded from software and re-encrypted in an FBI code.
Those messages were then sent on again to another server where they could be viewed by law enforcement.
One of the central planks of Mr Abbott’s arguments was that the AFP were illegally “intercepting” the messages with no warrant under the Telecommunications Act.
“This is no different than unlawfully tapping someone’s phone,” he said.
“And the AFP know they would not have got interception warrants for the 9000 AN0M phones. There was no possibility of getting that warrant.”
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