news Shadow Communications Minister Malcolm Turnbull has broken his silence regarding the Fedeal Government’s controversial data retention and surveillance package, declaring that he has “grave misgivings” about a project which he feels “seems to be heading in precisely the wrong direction”.

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.

Up until now, Turnbull and other senior Coalition figures have declined to comment substantially on the proposal, pending a parliamentary inquiry into it. However, some Liberal backbenchers are stridently opposed to the package, including Liberal MP Steve Ciobo, who has described as including tactics similar to those used by the Gestapo — the Nazi secret police. Yesterday, in a wide-ranging speech given as the annual Alfred Deakin lecture, Turnbull openly declared his concerns about the package for the first time (see the full text of his speech here).

“Without wanting to pre-empt the conclusions of the Parliamentary Committee, I must record my very grave misgivings about the proposal,” Turnbull told the audience. “It seems to be heading in precisely the wrong direction. Surely as we reflect on the consequences of the digital shift from a default of forgetting to one of perpetual memory we should be seeking to restore as far as possible the individual’s right not simply to their privacy but to having the right to delete that which they have created in the same way as can be done in the analogue world.”

Turnbull said out of the package’s many proposals (PDF), it was the data retention issue which was the most far-reaching, but “least clearly explained”. “Internet companies will apparently be required to store parts of everyone’s data, although there is no clarity as to which material will be kept or why,” said Turnbull. “In fact there is little clarity; period. A recent letter from [Federal Attorney-General] Nicola Roxon to the Herald-Sun bemoaning its coverage of the data retention issue provided more information about this measure than a 61-page discussion paper released by her department.”

“While the purported intent is that only metadata – data about data – will be available to law enforcement, security and intelligence agencies, there is no explanation of how metadata will be distinguished from data (the two are often commingled, as in the ‘subject’ line of emails), why both would not be readily available once a message has been handed over and decrypted, and indeed how readily in an IP world it is possible to keep a record of the time, date, size, sender, receiver and possibly subject of an email without also retaining the contents.”

Neither, said Turnbull, had there been any explanation given by the policy’s backers (principally the Attorney-General’s Department and law enforcement agencies) as to what costs and benefits have been estimated for what the Liberal MP said was a “sweeping and intrusive new power”, or how such costs and benefits were arrived at, what (if any) cost was ascribed to “its chilling effect on free speech”, and whether any gains in national security or law enforcement outcomes would be monitored and verified, should the proposal be enacted.

“The German Federal Constitutional Court has recently struck down a similar data retention law noting that “meta-data” may be used to draw conclusions about not simply the content of the messages, but the social and political affiliations, personal preferences, inclinations and weaknesses of the individual concerned,” said Turnbull.

“Leaving aside the central issue of the right to privacy, there are formidable practical objections. The carriers, including Telstra, have argued that the cost of complying with a new data retention regime would be very considerable with the consequence of higher charges for their customers.

Turnbull also questioned how offshore data would be treated, pointing out that search and software as a service giant Google hosted “much, if not most” of the relevant data for Australia — but that the company had no Australian datacentres, with it hosting all of its data offshore. “Much of our voice and video calls occur now over IP services, like Skype or Google Chat. Is their customer metadata stored in Australia? Almost certainly not,” the Liberal MP said.

“Google currently permanently deletes emails or Youtube videos from their server once the customer deletes it. Search logs are rendered anonymous after nine months. It would be utterly impractical, and possibly unlawful, for Google to discriminate against customers from Australia and treat them differently from any others.”

Turnbull also pointed out that the “criminals of the greatest concern to our security agencies” would be able to use “any of numerous available means” to anonymise their communications, or even choose new services which were not captured by legislated data retention rules — meaning the scheme would be easy to evade.

The Shadow Communications Minister also pointed out that the data retention proposal was only “the latest effort by the Gillard Government to restrain freedom of speech” — with its mandatory filter policy which was backed by Communications Minister Stephen Conroy several years ago having been knocked back by the Coalition and the Greens. Conroy said the filter would have represented ” a profound weakening of online liberty in Australia”.

Turnbull linked the issue of Internet privacy and freedom of speech to core values held by liberals.

“Just as the digital world has opened up new avenues for every form of freedom, so too it is freedom itself, our core value as liberals, which will continue to liberate the imagination,” he said. “It will ensure the digital world is, if not the best of all possible worlds, at least a world where more of us can speak out in our own voice, unmediated by others, dream our own dreams, undirected by governments, and claim more than any generation before us, our birthright as free men and free women.”

Background

In general, the Government’s data retention and surveillance 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 addition, several weeks ago The Australian newspaper reported that about a dozen Coalition MPs had bitterly complained about the data retention proposals in a passionate party room meeting, with Opposition Leader Tony Abbott being urged to directly pressure the Government on the issue.

Roxon and agencies such as the Australian Federal Police have attempted to justify the need for a data retention scheme by stating that the increasing use of the Internet by criminals has made traditional telecommunications interception powers less useful.

“The need to consider a data retention scheme has come about because of changes in technology that have affected the behaviour of criminal and national security suspects,” said Roxon recently. “Targets of interest now utilise the wide range of telecommunications services available to them to communicate, coordinate, manage and carry out their activities. The ability to lawfully access telecommunications data held by the telecommunications industry enables investigators to identify and build a picture of a suspect, provides vital leads of inquiry and creates evidence for alibis and prosecutions.”

opinion/analysis

I commend Turnbull for this stirring and wide-ranging speech and fully support his comments, as I expect the majority of Australians will.

What is remarkable about this speech (I encourage you to read it in its entirety, it’s worth the 10min) is that it represents not only an evocation of traditional liberal values, but also a bridge between those values and the modern world. Unlike many politicians, Turnbull clearly “gets” technology and its interaction with our modern society, and he applies his values to that situation — but not only his values. He also applies his intellect and does his research before taking a position on issues.

It’s shocking, right? A politician who researches and thinks about an issue in depth, and them thinks about how their own values will apply to that issue? Then gives a stirring, noble, well-referenced and thought-out speech on a major occasion to show their thinking? No wonder that so many Australians continue to be inspired by Malcolm Turnbull. In an age where the chief political catchcries have been things such as “stop the boats” and “moving forward”, Turnbull talks about freedom, the rights of the individual, our human ability to dream and the a vision for the way forward.

We haven’t quite forgiven the Member for Wentworth for his muddying of the National Broadband Network debate yet. And in truth, classic liberal values are a little harder to apply to that complex situation, with its detailed financial and regulatory minefield obscuring things. However, every time Turnbull gives speeches such as the one he gave last night for the Alfred Deakin lecture, we find ourselves willing to believe in the politician all over again. Nice work, Mr Turnbull — you nailed this one.

Image credit: Office of Malcolm Turnbull