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The importance of transparency and awareness around NSLE data powers was recognised in many of our interviews with Australian informants.
Research participants also identified the connection between transparency and public acceptance and trust of NSLE agencies.
In Australia, for example, organised crime, the rise of the Islamic State ('IS'also known as ISIL or Daesh), internal 'radicalisation', Australians joining foreign conflicts, a number of foiled plans for terrorist attacks on Australian soil and the Lindt Cafe siege are major drivers of the NSLE agenda.
The Australian and UK interviews revealed similar themes in terms of the importance and limits of public transparency around collection of and access to data for NSLE purposes.
A prominent example is the power under the Telecommunications (Interception and Access) Act 1979 (Cth) to require telecommunications providers to retain telecommunications metadata so that it can be accessed in the course of NSLE inquiries.
This was evident in the responses of research participants to a question asking them to identify laws, regulations and procedures governing the use of data and data analytics by NSLE agencies.
Other Australian research participants (five P/P, but none in an operational agency) also expressed the view that algorithms used by NSLE agencies should be transparent, for reasons including accuracy and robustness.
Outside the NSLE context, algorithmic transparency has been said to be an important component of 'due process' (or natural justice in Australia) where administrative decisions affecting individuals are based on algorithms.
(59) The first is 'opacity as intentional corporate or state secrecy', (60) although the 'or' is generally an 'and' in the context of NSLE. Not only are there NSLE agency concerns about operational secrecy, but, where software is provided by private actors, there will also be contractual restrictions on what can be disclosed about the algorithms.
Within the NSLE context, the issue of state or operational secrecy regarding both data and analysis was the primary concern raised by research participants about algorithmic transparency.
(65) Prior to the Snowden revelations, the scope of bulk data access powers granted to NSLE agencies in the UK was non-transparent.
The process leading up to the Investigatory Powers Bill 2016 (UK) illustrates how the UK became more transparent in how NSLE agencies collect, access and use data, at least with respect to clarity and transparency around the grant of powers.
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