news The Federal Government today revealed a wide-reaching program to substantially reform its telecommunications interception and surveillance powers with the aim of bolstering the ability of law enforcement organisations to fight crime, including the introduction of a so-called “data retention” scheme that has attracted a great deal of controversy in Australia under the ‘OzLog’ banner.

The package of reforms which are being promulgated by the Federal Attorney-General’s Department include a number of modifications to four pieces of legislation; The Telecommunications (Interception and Access) Act, the Telecommunications Act, the Australian Security Intelligence Organisation Act and the Intelligence Services Act.

At this stage, the Government has not yet released the precise details of the legislative changes it wants to make. However, Delimiter has seen government documentation suggesting that that the changes are extremely wide-reaching. For example, the Government is seeking to modify aspects of the Telecommunications (Interception and Access) Act that relate to the legislation’s privacy protection clauses, tests for issuing warrants, oversight arrangements and information sharing provisions between agencies, for a start.

Instead of law enforcement agencies being forced to request multiple different types of interception warrants, the legislation would be modified to allow authorities to request a new more comprehensive centralised type of warrant with multiple powers. The interception regime — which allows authorities to request Internet service providers and telcos to intercept the communications of their customers — would be extended to some types of service providers not currently covered by the legislation.

Provisions under the ASIO Act for the intelligence agency to request warrants are to be modernised and streamlined, and the agency is to gain the power to disrupt a target computer for the purposes of accessing the information on it — or even to access other third-party computers on the way to the target machine. The Government is also interested in establishing an offence which would allow Australians to be charged with failing to assist in decrypting encrypted communications. Also on the cards is a data retention protocol which would require ISPs, for example, to retain data on their customers for up to two years. This is an idea which has proven controversial in Australia over the past several years.

In a statement issued this afternoon, Attorney-General Nicola Roxon said that the “potential” reforms would be examined by the Parliamentary Joint Committee on Intelligence and Security through public hearings, noting that this was “the beginning of the process”, and that the Government was seeking “diverse views” before determining which legislative reforms it would pursue.

“We must stay one step ahead of terrorists and organised criminals who threaten our national security,” Roxon said. “At the same time, we need to have the right checks and balances in place to ensure that those who enforce our national security laws do so responsibly. Unlike the Howard Government, the Gillard Government wants to give the public a say in the development of any new laws, which is why I’m asking the Committee to conduct public hearings. National security legislation is important – but also important is the trust and confidence that Australians have in those laws.”

Greens reject the package

However, the Government has already come under attack for promulgating the reforms from the Greens, which views many of the proposed changes as being inappropriate. Australian Greens spokesperson for communications Senator Scott Ludlam today warned against further extending what he said was the “the loosely defined and already over-reaching online surveillance powers” of Australia’s intelligence agencies.

“Today’s announcement starts the next chapter of the ‘data retention’ debate (#ozlog) which the Government should have backed away from,” Ludlam said in a statement. “This is the idea that all our personal data should be stored by service providers so that every move we make can be surveilled or recalled for later data mining. It is premised on the unjustified paranoia that all Australians are potential criminal suspects.”

“Australians are already under a phenomenal amount of government surveillance. Nearly a quarter of a million telecommunications data warrants were granted in 2010-11 according to the annual Telecommunications (Interception and Access) Act report. This includes detailed locational data logged by every smartphone, every minute of the day.”

Ludlam highlighted the fact that the Australian public only knew about the data retention scheme plans ahead of time because of a “courageous” leak.

“That whistleblower understood that giving data retention powers to law enforcement and intelligence agencies undermines the very rights and liberties they are ostensibly empowered to protect,” Ludlam said. “Data retention as envisaged by this government will entrench enormous databases that can be mined for precise patterns of our movements, purchases, interests, friends and conversations. This interception, copying, recording and disclosure of our data is a means to retroactively police the whole population.”

Ludlam said the Greens welcomed a public consultation on the proposed changes, but added that the Attorney-General’s Department was “notorious” for “cheerfully ignoring” the advice of experts, interest groups and the general public when it came to consultations. “This looks like an ambit claim for surveillance overkill, but nevertheless, the Australian Greens will work closely with legal and privacy experts as well as ISPs and concerned citizens to turn back this unwarranted invasion of Australians’ online privacy,” said Ludlam.

opinion/analysis

Firstly, let me note that there is a lot going on here, with most of it below the surface. It is, perhaps, important to start with summarising what we don’t know, before going through what we do. This is not an uncommon approach to dealing with the Federal Attorney-General’s Department.

What we don’t know at the moment with respect to this package of reforms is virtually any of the detail regarding them. I, and I believe a number of other journalists, have today seen a broad-brush overview document which contains a few pages of high-level themes which will be discussed by the Parliamentary Joint Committee on Intelligence and Security. However, at the moment the media and thus the Australian public have no real idea what the legislative substance of the Attorney-General’s proposals looks like. This situation, will, of course, need to eventually be rectified, as those legislative changes will need to be public to go through Parliament.

However, what we also don’t know is precisely when that legislation will be made available. Will it be publicly discussed by the Parliamentary Joint Committee? Or will that committee only make available the high-level themes which the Attorney-General’s Department is interested in talking about, with legislation to come later on, after the public discussions? That’s unclear at the moment.

We also don’t know where this entire process has had its genesis.

It has been clear for several years that the Attorney-General’s Department has been working on data retention proposals. But today’s release by Roxon details a whole raft of other stuff. New types of comprehensive warrants, the power to access people’s computers (even unrelated computers, on the way to target computers), protection for ASIO officers, new charges for people who won’t follow orders and decrypt things for the Government … there’s a stack in here, and it’s all new.

We don’t know how long AGD has been working on this stuff, and we don’t know who else — which agencies, private sector bodies or even foreign governments — have had a say in it so far. This massive amount of work has just appeared out of thin air and received the stamp of approval of an Attorney-General who has only been in the chair for a few months. Creepy.

What we do know is that Scott Ludlam now has a mammoth amount of work ahead of him to try and find some of this stuff out before Australia’s civil liberties get tossed out with the garbage. Ludlam, the Greens Communications Spokesperson and resident Gibson-esque conspiracy theorist (and, it appears, with good reason), is one of the only figures within the Federal Parliament who is concerned about the erosion of civil liberties through increased government surveillance. Not many voices will be raised in public about this huge package of reforms which Roxon has rubber-stamped; and Ludlam’s will be one of the only ones with parliamentary privilege.

Unfortunately, Ludlam isn’t even on the Committee which will examine the package (in fact, no Green is), but hopefully that can be rectified before its examination of the situation begins. The Greens should have enough parliamentary power to wangle that. If that fails, probably the only other hope for some decent oversight of this package is the presence of independent Andrew Wilkie on the committee. Bear in mind, in addition, that there is no guarantee that this legislation will have problems making its way through Parliament, as the Opposition has been very quiet on these issues, and sometimes sides with the Government on issues of law enforcement.

Ludlam isn’t the only one who has been investigating the issue of data retention over the past year. Delimiter filed a Freedom of Information request on the subject with the Attorney-General’s Department in late January this year. Ever since, we’ve been wrangling with the department on the terms, to try and force it to give us some useful information on just what it’s up to in the area. I’ll have an update on that situation hopefully next week.

In the meantime, the weekend might perhaps be a good time for those who have not yet gotten involved in this struggle to curb law enforcement powers in the digital age to ruminate on the famous quote by Benjamin Franklin: “Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety.”

Image credit: Mateusz Stachowski, royalty free