news Australia’s financial regulator has called for the content of online communications – not just the metadata associated with the communications – to be retained as part of the Federal Government’s data retention and Internet surveillance package being pushed by the Attorney-General’s Department, in a move which was immediately damned by critics of the proposed scheme.

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.

Attorney-General Nicola Roxon has specified that the data retention proposal would only see so-called ‘metadata’ collected – constituting data about senders and receivers of communications such as phone calls and emails, as well as the time sent and location, but not the actual content of communications, such as the text of emails or recordings of voice telephone calls.

However, according to a media release issued by free market thinktank the Institute of Public Affairs this afternoon, one of Australia’s key regulators wants to go further. “In evidence given to the National Security Inquiry in Sydney today, ASIC stated that the content of online communications was needed to investigate insider trading and Ponzi schemes,” wrote the IPA. The transcript of today’s proceedings is not yet available.

Such a move would dramatically increase the scope of the data retention scheme, which is already heavily opposed by a broad coalition of groups ranging from civil liberties organisations to privacy groups and even telecommunications companies and ISPs. The IPA damned ASIC’s proposed expansion of the data retention scheme, in its statement.

“The Australian Securities and Investments Commission’s push to access the personal data of all Australian web users shows exactly why the government’s proposed mandatory data retention regime should not go ahead,” said Simon Breheny, director of the Rule of Law Project at the IPA.

“The IPA predicted that power-hungry regulators would make a concerted effort to get hold of any information retained under a data retention regime. The fact that ASIC has demanded this and more before the laws have even passed is a stark warning to all Australians,” he added. “The Australian people have been told we need new mandatory data retention laws to fight terrorism. ASIC’s push to access this data, and to make it even more comprehensive, completely undermines all assurances we’ve heard from the federal government.”

“ASIC is just the latest in a fast growing list of government agencies that have demanded the use of communications data. The Australian Competition and Consumer Commission and Australian Customs and Border Protection Service made similar claims earlier this month,” the IPA added.

“The IPA remains unconvinced that police need these new laws. The case has not been made and studies have shown data retention to be completely ineffective in fighting crime. But the idea that any agency of government could access this data is even more frightening. The only way to ensure that doesn’t happen is to stop these laws being passed in the first place,” said Breheny.

The news comes as police organisations this week told the parliamentary committee into the data retention and surveillance reforms that they would prefer if the metadata which would be retained under the proposal to be retained “indefinitely” instead of just for a two year period. The Pirate Party of Australia has described the idea of indefinite data retention as “appalling”.

“It appears that the police commissioners are trying to portray their two-year retention proposal as a reluctant compromise, yet any blanket warrantless arbitrary retention of the communication data of the entire population is a totally unnacceptable risk to civil liberties and fundamental privacy rights,” said Mozart Olbrycht-Palmer, Deputy Secretary of Pirate Party Australia in a statement this afternoon. “While arguing about ‘how out of date interception laws are,’ they seemed oblivious to the fact that an intrusive scheme of warrantless retention of data was already passed under the Cybercrime Legislation Amendment Bill. These amendments provide targeted retention on request, rather than automatic blanket retention of everyone’s data.”

“We object to any widescale surveillance systems, and oppose mandatory data retention for all Internet connections, regardless of the retention period. Judicial oversight and explicit, limited warrants are necessary safeguards that the National Security Inquiry discussion paper proposes to eliminate. It appears that the police commissioners are essentially saying ‘trust us’ while attempting to do away with judicial oversight of their actions, railing agianst the ‘burdensome’ nature of warrants – an element key to protecting society from abuse of powers.”

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, last week 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 this week. “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

Wow. So this data retention proposal isn’t even law yet, and already Australian regulators are proposing to extend it beyond the so-called ‘metadata’ aspect and into the actual content of communications? Incredible. Surely it is not worth creating a gigantic archive of all Australians’ communications just to catch the incredibly small percentage of Australians involved in financial fraud? But maybe this is something ASIC doesn’t appear to understand? This is government at its worst – out of control, seeking total surveillance of every citizen, making a huge land-grab on Australians’ privacy.

Image credit: Mateusz Stachowski, royalty free