news Federal Attorney-General Nicola Roxon has taken to YouTube to make an impassioned plea to Australians not to believe some of the criticism which is being spread about the Federal Government’s highly controversial data retention and surveillance package, which has been widely slammed by a large number of interest groups as being over the top.

The Federal Attorney-General’s Department is currently promulgating a package of reforms which would see a number of wide-ranging changes made to make it easier for law enforcement and intelligence agencies to monitor what Australians are doing on the Internet. For example, one new power is a data retention protocol which would require ISPs to retain data on their customers’ Internet and telephone activities for up to two years, and changes which would empower agencies to source data on users’ activities on social networking sites. Another power would see it made illegal for Australians to refuse to decrypt their data, and warrants are also to be simplified and streamlined.

In general, the package has attracted a significant degree of criticism from the wider community over the past few months since it was first mooted. Digital rights lobby group Electronic Frontiers Australia has described the new powers as being akin to those applied in restrictive countries such as China and Iran, while the Greens have described the package as “a systematic erosion of privacy”.

In separate submissions to the Parliamentary Joint Committee on Intelligence and Security inquiry into the reforms, a number of major telecommunications companies including iiNet and Macquarie Telecom, as well as telco and ISP representative industry groups, have expressed sharp concern over aspects of the reform package, stating that “insufficient evidence” had been presented to justify them. And Victoria’s Acting Privacy Commissioner has labelled some of the included reforms as “being characteristic of a police state”.

The Institute of Public Affairs, a conservative and free market-focused think tank, wrote in its submission to the parliamentary inquiry on the matter that many of the proposals of the Government were “unnecessary and excessive. “The proposal … is onerous and represents a significant incursion on the civil liberties of all Australians,” wrote the IPA in its submission, arguing that the data retention policy should be “rejected outright”. And one Liberal backbencher, Steve Ciobo, has described the new proposal as being akin to “Gestapo” tactics.

In her video on YouTube, Roxon said she wanted to inform Australians on “what’s really happening” with the review into national security which she had commissioned. Embedding the video has been disabled, and so have comments.

“I’m sure I don’t need to tell you that we live in a changing world where technology is forever evolving. Gone are the days when we relied on landline phones, the odd fax or two and mail to keep us all connected,” Roxon said. “Today almost all of us have mobile phones, we can send emails, get on Skype, Facebook, Twitter… You’re watching me now online. Really, we’re spoilt for choice.”

“But, just as you and I have benefited from this remarkable change in communications technology, criminals and terrorist have also benefited. As the Attorney-General, I want to make sure that our police and national security agencies can keep up with this rapidly evolving technology and the new environment.”

Roxon said lobbying organisation GetUp! had informed its members that under the new data retention laws, companies will be required by law to store every message you send, every website you visit, every conversation you have, or product you buy for two years.

“This is simply not true,” Roxon said.

“Right now the Police and ASIO can get access to what’s called “metadata” – such things as the time an email is sent and who it is sent to. But, not to the content. That’s already the law and it is important for fighting crime. And it is subject to strong legal safeguards. One of the many things in this review is whether or not that metadata should have to be held for a certain period, so it is there if it is needed. Sometimes it is already held by telecommunications companies for two years and internet service providers, but sometimes it gets deleted.”

“So that’s the question we’re asking. Should we make keeping this metadata a requirement, and if we do – how long should it be required for? Should it be six months? A year? Two?”

GetUp!, Roxon said, had also claimed that ASIO will be able to demand your passwords to access your computer or Facebook, and if you refuse you could go to jail. “Again, that’s totally false. There is no proposal that people give up passwords,” the Attorney-General said.

“But sophisticated criminals, particularly paedophiles, are known to encrypt their information. There are already powers for law enforcement agencies under warrant to compel suspects to decrypt data held on a computer to turn unintelligible information into compelling evidence against these serious criminals. The question we’re asking the committee is whether this should extend to live communications like chat rooms for crimes like paedophilia.”

“I understand there is a great deal of interest in these reforms. But, I also think it’s very important that people have the right facts. And that’s why I’ve made this video today.”

opinion/analysis

While Roxon’s statements in this YouTube video appear to be broadly correct, it also remains true that the Attorney-General is glossing over a large amount of information with regard to the extremely wide-ranging and comprehensive surveillance and data retention package which the Attorney-General’s Department is currently pushing.

For example, Roxon doesn’t inform viewers that law enforcement agencies already have the power to request ISPs and telcos to retain and hand over data on suspects, through various historical pieces of legislation and the recent Cybercrime Legislation Amendment Bill, which extended those powers. There has been no evidence presented so far that these laws are not working, but the proposed data retention laws would extend that practice much further, to all Australians — not just those suspected of a crime.

Roxon doesn’t happen to mention that the Australian Security Intelligence Organisation is also getting vastly expanded powers to hack into people’s computers remotely without notice, if they need to do so to get to a suspect’s computer. Dramatically modernised warrants, information sharing between agencies, changing oversight arrangements on telecommunications interception … there’s a stack of other aspects to the current data retention and surveillance package, and Roxon doesn’t really address any of it in her YouTube video.

Roxon also highly misconstrues the public consultation process around the proposal. The Attorney-General claims that the previous Howard Government would have made these kinds of decisions “behind closed doors”. “Our Government, in contrast, wants to make sure that all the options are on the table for the public to see,” she said. “And I want to make sure that politicians from both sides of the Parliament have the time to scrutinise them in detail.”

However, this just isn’t really true.

The existence of the data retention proposal was first revealed to the Australian public courtesy of a leak in mid-2010. But ISP iiNet confirmed at the time that it had been briefed in late 2009 about the issue, at the same time as other ISPs. However, the Attorney-General’s Department is believed to have required ISPs to sign non-disclosure agreements regarding the discussions. It has repeatedly declined and censored freedom of information requests into the matter since that time.

Although the Federal Government is holding an inquiry into its data retention and surveillance package, the parliamentary committee overseeing the inquiry initially only gave the public a month to make a submission to the inquiry. Subsequently, following protests by digital rights groups, that deadline was extended by two weeks. However, a number of commentators have pointed out that a number of the measures proposed under the surveillance package are extremely wide-reaching and likely merit their own individual inquiry, limiting the value of the inquiry in general.

Furthermore, that inquiry does not actually have the proposed legislation to examine — just a summary document. The legislation which will enact this package is still locked away behind closed doors — with many of the details involved completely unknown at this stage.

Roxon’s claims that the Federal Government is being transparent in this case are laughable — in my experience, the Attorney-General’s Department is doing everything possible to block public consultation and transparency when it comes to these proposals.

From my perspective, it appears as if Roxon completely underestimated the amount of public outrage at these proposals. The Attorney-General has published two letters to the editors of major newspapers in the past few days and is now facing questions from the media on this issue daily wherever she goes. This YouTube video represents the fact that Roxon feels she is struggling to get her message out, in the face of a press corps rightfully outraged by this wide-ranging proposal.

But that doesn’t excuse the ommissions, half-truths and misrepresentations contained in Roxon’s video. Attorneys-General, who are, after all, our government’s chief lawyers, should be able to be more precise and accurate than this. That’s what we pay them for.

Image credit: Office of Nicola Roxon