Massive government data retention attacks our values: presumption of innocence and right to privacy. It is fundamentally much more than a debate over storage, says Arved von Brasch.

Govt attacks values we cherish

Letter to my federal parliamentary representatives…by Arved von Brasch*

I am writing today about a serious matter that will shortly come before parliament. Mandatory data-retention attacks two of Australia’s cherished values and should not be treated in the flippant manner it has been to date. It radically undermines the fundamental common law principle of presumption of innocence, and erodes the important right to privacy.

Such massive changes in the way Australian citizens are treated by their government should not be “rushed” through parliament without a long and honest debate with the Australian public, and solid evidence that what we’re being asked to surrender is worth the heavy societal cost. There is no evidence to that effect, and the short debate we’ve been allowed has been anything but honest.

Frankly, the monetary cost is irrelevant. With the death of the National Broadband Network (NBN), Australia is already likely to be stuck with slow, expensive access for another generation. An effective surveillance tax on internet access is merely salt in the wound. Although, if we can’t afford to properly educate our young people or look after our sick, as the current government claims, then it’s amazing that there’s apparently money to waste on mandatory surveillance of every citizen.

Internet access should be considered a utility, as it is no longer avoidable for living.

Under common law, all Australians should have the presumption of innocence. This means that no one should have to prove to the state that they are not doing something wrong. It is up to the state, with judicial oversight, to prove that an individual has acted in an illegal manner. A relevant parallel, for my Department of Immigration friends, is mandatory drug testing for public servants. A drug test requires an individual to prove they are free from drugs: it is therefore presuming – before it is administered – that they are guilty of taking drugs, and on this principle should be disallowed. Similarly, warrantless collection of personal data presumes that people are guilty of a crime, and only an examination of their data will clear them of that suspicion.

It is not enough to say that those who have nothing to hide have nothing to fear. That trite sophistry ignores that everyone has information about their lives that they’d prefer not to be public. Whether it is that they’ve called a depression helpline, recently had an abortion, or even secretly become a member of the Labor Party, it is simply not the government’s business.

There is no evidence that this information actually helps prevent crimes. The German experience, for example, which appears to have been completely ignored by the parliamentary committee, found that the clearance rate of crimes increased by just 0.006% – http://www.vorratsdatenspeicherung.de/content/view/446/79/lang,en/

These tiny ends do not justify the means. This finding came after the German courts found that there was no way to reconcile data retention with fundamental rights, and the laws were overturned.

Privacy is fundamental to living freely. People act differently if they feel they are under surveillance. While it is true that Australia doesn’t have a Bill of Rights, and it could therefore be argued that the government is within its rights to treat its citizens’ privacy with contempt, overturning this assumed right should be treated with extreme caution and scepticism. There is no acknowledgement that anyone in government, or the Labor Party for that matter, understand the full implications of exactly what is being proposed.

And this is before we even know what exactly will be stored. What personal data is collected, why it’s collected, how they collect it and who gets to access it have only ever been discussed in round-about sloganeering. That is simply not good enough for a change that fundamentally alters what it means to be Australian.

Proper, rigorous oversight certainly hasn’t been addressed. When this data is stolen (not if), will the telecommunication company be punished? Harshly enough for them to take security seriously? Will the then Attorney-General consider a data breach a serious enough matter to have the integrity to resign? What happens when someone uses their access to the data to spy on their spouse, or stalk a former lover? Who will pay for the massive scope of identity theft that is undertaken by ‘the Russian Mob’?

And that comes to all the obvious ways around this proposal. As this only applies to Australian companies, any serious ‘terrorist’ organisation will use a Virtual Private Network and offshore online services, thereby completely avoiding data retention. Instead, honest Australian citizens are triply punished – having their data stored, having to pay for it, and being no safer according to the narrative that’s being pushed for this change.

Security should be really hard for law enforcement. The presumption of innocence and privacy are principles worth dying for.

A good comparison is road fatalities. The road toll could be almost completely eliminated by introducing a mandatory maximum speed of 20 km/hr. The trade off here is largely convenience. It is a trade off that means 1,000 Australians will die every year on the roads. In comparison, less then 10 Australians die from ‘terrorist’ related events, and in most years 0. While I’m not proposing that speed limits be reduced, I do accept that driving, or even being a pedestrian, does put me at risk of death, but if I have to die, I’d much rather it be for the principle of privacy and a life free of government-imposed suspicion than for my personal convenience.

Arved von Brasch is an Australian software engineer who knows more about data, and storage, and software, and engineering than the entire parliamentary committee would were the concepts to byte them on the bum. He is a member of Civil Liberties Australia. Posted 3 March 2015.