One of the charming, yet perplexing, Australian qualities is that most of the time we pay little to no attention to what politicians say or do. Even though enormous screeds are written about what goes on in the nation’s capitals, generally speaking they are of supreme disinterest to people who decide the outcomes of elections. Maybe, this is natural for a country that for a couple of hundred years has largely been populated by sheep. Even when legislation affects us directly and profoundly, barely a squeak is raised – unless it is a new tax. So it is with the data retention bill that nearly six weeks ago landed with a thud in parliament and has lain fallow while committees pick and poke at it. The profound interference that this legislation proposes for the lives of everyone requires a supreme feat of detachment for it to progress without a mass uprising. Special interests groups invariably get excited about laws that affect their patch. So it is that we’ve seen media people campaigning against national security laws that criminalise journalists reporting on information that forms part of a “special intelligence operation”. This is the notorious clause 35P in the first clump of this year’s Isis-related anti-terror laws. You’ll remember attorney general George Brandis got himself into one of his famous prolix tangles when he tried to falsely suggest on the ABC’s Q&A program that the penalty for disclosing state secrets wouldn’t apply to journalists if a whistleblower, like Edward Snowden, disclosed it first. His copy of the legislation must have been quite different to the one everyone else was reading. Journalists kicked up such a racket that the attorney general had to produce some soothing balm - like only he could approve prosecutions against reporters for reporting what security agencies deemed out-of-bounds. The only thing in living memory that has energised protests by the media against national security legislation is the very law that affects their territorial freedom. Yet, here we are with the data retention bill, which puts the entire population under surveillance, monitors and stores details of our phone calls, our email traffic and inevitably our viewing on the web, and the national outcry is non-existent. It’s as though the liberty of all the citizens is nothing when set against the prospect of a few journalists ending up in the clink. Bret Walker, the Sydney barrister who was previously the independent national security legislation monitor, describes this as the “malaise of the citizenry”. There is simply not enough “push back”. The disproportionate overreach of the data retention amendments to the Telecommunications (Interception and Access) Act extend beyond invasions of citizens’ personal privacy and information. They go to reconfiguring the implied social compact between the state and its citizens. Professor Roger Bradbury from the strategy and statecraft in cyberspace research program at the ANU’s National Security College mentioned this shift during a panel discussion on cyber security last week at the Law Society of NSW. The theory of the state, at least in the quasi-democracy model that we have, is that it is there to protect citizens and apply taxation for the betterment of society, based on a broad consensus. The tables are turned if the state takes on the Stasi-like function of mass surveillance with the regime having the capacity to spy on us, constantly and permanently. If the state is riffling through our thoughts, passions and speech - for ends that are not entirely clear - the relationship between the governed and the government changes. Walker told last week’s discussion at the Law Society that there’s not nearly enough rational talk about privacy. With invasive technologies at the disposal of government agencies, “much less is privacy than we think”. “There is a porous barrier, though which information about our private life is merrily flowing.” The former independent monitor queried whether everything kept as part of the data retention regime can possibly be kept entirely secret. A swelling repository is likely, inevitably, to be subject a major attack. Curiously, the government has not advanced anything to show it is thinking about how to protect this information about its citizens from such a cyber assault. “Secrecy is far more engaged when it comes to matters concerning big money.” As a person who has been involved in litigation for 35 years, Walker sees this characteristic quite frequently. What he thinks would be a good idea is legislation prescribing what should be private, things like your mother’s medical records or the code for the US nuclear arsenal. Everything that is not prescribed would be in the public domain, so information that will embarrass people who exercise sovereign powers improperly can be widely known. What Walker does see as crucial is the need for warrants to be granted judicially before agencies can access personal data held by telcos. Access should “all be done under warrants granted by courts, because that provides another level of someone’s thinking about the issue”. The security agencies say judicial warrants would make their lives too difficult, which is exactly the reason they are essential. Last financial year Australian telcos made over half a million data disclosures to law enforcement authorities. That excludes Asio, which is not required to report its figures, but it is saying that a lot of its work would “grind to a halt” if warrants were required. This gives us some idea of the dimension of the agency’s wholesale warrantless access to personal communications information. Edward Snowden’s revelations shocked Americans about the extent to which they were under surveillance, leading to moves in Congress to attempt to ameliorate the remit of the eavesdroppers. Yet, here we are in Australia, going at it with our warrantless ears back. The Europeans have grappled with the same issues and some countries have taken steps to address the concerns. In April this year, the Court of Justice of the European Union declared the union’s data retention directive to be invalid, on two main grounds: interference “in a particularly serious manner” with private life and the protection of personal data, and that the directive was disproportionate to the aim of combating serious criminal activity. The EU data retention directive failed to lay down objective criteria which defined the use to which the information could be put, the conditions which must apply before access should be permitted and the fact that access is not dependent on prior review by a court or tribunal. Precisely the same issues that blight Australia’s proposed data retention regime. The European data directive imposed a retention period of at least six months and a maximum of 24 months. Our bill opts for 24 months, flat, yet as the cross party parliamentary committee on human rights points out, the submissions made by law enforcement agencies indicate that data held for longer than six months is rarely the subject of access. It is not only lawyers, journalists and whistleblowers who should be on the battlements about this proposed law, it is anyone who deals in volumes of confidential data and the creators or generators of that information. A non-exhaustive list would include, doctors, hospitals, accountants, local councils, insurance companies, and financial institutions. The legislation is simply not rigorous enough, leaving vast tracts of discretion to be the subject of regulations. It’s back before parliament for consideration early next year, after the joint security and intelligence committee has reported. Undoubtedly, there’ll be some tweaks yet this is not a matter purely for vested interests. All citizens have an interest in this outcome. The minister who introduced these amendments to the Telecommunications Act, Malcolm Turnbull, two years ago in his Alfred Deakin lecture flayed the previous government’s efforts to try and introduce similar legislation. He complained that, “The most striking proposed expansion of government power over private data is the least clearly explained ... This data retention proposal is only the latest effort by the Gillard government to restrain freedom of speech.” His own bill does precisely the same. As we know, the minister who has carriage of the bill in the Senate, attorney general George Brandis, doesn’t understand a thing about metadata or data. Between the two of them it is little wonder that their proffered privacy protections consist of rapidly decomposing fig leaves.
Posted on: Mon, 08 Dec 2014 02:06:47 +0000
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