Two weeks ago, 55-year-old Sydney businessman Alexander Csergo was arrested on charges of “reckless” foreign interference.
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, withdraw cash and agree to write reports to them about Australian defence, economic and security arrangements.
Csergo’s attorney, Bernard Collaery, has argued that he is innocent.
Collaery has some skin in the national security game. In 2018, he was charged with conspiracy to disclose classified information after allegedly asking a client (an ex-spy known only as Witness K) for information about an Australian espionage operation. It was only last year that Attorney General Mark Dreyfus dropped those charges.
Csergo’s defense is that he only access publicly available material. He claims he cooperated with the police and even handed over his devices to the Australian Security Intelligence Organization (ASIO) to prove his innocence.
Leaving aside Csergo’s guilt or innocence, his case raises an interesting question: what does Australia’s set of new foreign interference laws mean for people who trade in open-source information, say academics, analysts or journalists?
Could you be breaking the law by doing the “wrong” Google search and posting your results online?
Bianca de Marchi/AAP
What does the law say?
In 2018, the federal government revised Australia’s national security laws in an effort to address the growing threat from foreign actors. This revision included the introduction of nine new foreign interference offenses.
The new crimes include a crime of “reckless foreign interference” – the crime of which Csergo has been accused. Csergo is only the second person has to be charged since the new laws came into effect in 2018. He could face up to 15 years in prison if convicted.
Reckless Foreign Interference prohibits covert, deceptive or threatening conduct on behalf of or in conjunction with a “foreign client”. The person must also have been reckless about whether the conduct:
- affect any political or governmental process or law,
- support of intelligence activities of a foreign client, or
- harm Australia’s national security.
Many of the terms used in this offense are broad or not clearly defined. This means that the crime has the capacity to capture innocent people.
For example, there may be covert or deceptive conduct in relation to each part of someone’s actions, even if it only plays a minor role. So for example one investigative journalist using hidden cameras or going undercover to investigate a public interest story may be considered to have acted covertly under the law.
Read more: Why Australia’s strict national security laws fail to stop foreign interference in our elections
And a “foreign client” can include not only foreign governments, but also entities owned, directed, or controlled by foreign governments (such as media organizations, public universities or companies). This means that the offense has the ability to imprison, for example, Australian journalists, academics, researchers and business people who work for or collaborate with an entity such as this or its staff.
Finally, the “recklessness” portion of the law makes it extremely broad, criminalizing people with a much lower degree of personal guilt compared to crimes that require an “intent” to commit a crime.
It is this part of the reckless foreign interference that could catch people using open-source information online.
Can I accidentally break the law?
It’s not an easy question to answer, but maybe it is.
Ostensibly, this offense could be applied to anyone using open source research to write an academic paper or policy report, provided it meets the other legal requirements.
Even more risk”open source intelligence”, or using public information for intelligence assessments (think “market research” for spies). This is used everywhere from the war in Ukraine Unpleasant fighting hackers and identity thieves. Csergo’s case could set a precedent here.
Read more: Why, amid warnings of ‘espionage cabinets’, Australia has stopped using its strict counterintelligence laws?
One of the largest pieces is missing from Australia strategy against foreign interference is an awareness and education effort about how these laws work in practice, as well as the “red flags” we should all be aware of.
Individually, Australians also need to wake up to the reality that foreign interference is more common than we think.
Foreign interference, espionage and covert actions are not abstract concepts. They are real and they happen in Australia. It is no coincidence that the head of ASIO said that our spy agencies inhand-to-hand combat”.
To be better protected, Australians need to be alert, but not alarmed, and more careful with whom they share information. Think like a spy: If I wanted to do something illegal with this information, what could I do?
The government should also consider whether these laws should be clarified, reformed or even replaced. We will continue to need laws that prohibit other countries from interfering in our affairs. In doing so, however, we must be careful not to undermine the freedoms Australia is known for.
