While the data retention legislation introduced today doesn't directly affect our freedom of speech, no proper case has been made out for this increase in capability for surveillance of private citizens, writes Michael Bradley.

Mass surveillance and metadata are today's battleground, as the Federal Government continues its rolling thunder campaign of intrusive and poorly drafted national security legislation. If you're one of the few Australians who has noticed that your personal freedoms are disappearing more rapidly than George Brandis's credibility, then you can be forgiven for having trouble keeping track of exactly what ASIO is now going to be allowed to do in your underwear drawer in the name of keeping you safe from the plastic sword-bearing mums of Lakemba.

The latest new law was introduced to Parliament today by Malcolm Turnbull, the formerly "liberal" Minister for Communications and recent convert to the social utility of police state powers.

It's called the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014. It's been referred immediately to the Joint Committee on Intelligence and Security, which has only four weeks to review and report on it because the Government is in a mad rush to get this through before Christmas.

The Bill makes it mandatory for information service providers (telcos) to keep and store "information" for two years.

The good news is it substantially reduces the number of government agencies who can access that information without a warrant. Under the current legislation, everyone from the Federal Police to the RSPCA can require telcos to hand over data, and that really had to be tightened. Which, largely, the Bill achieves by restricting the power to the criminal enforcement agencies (police, crime commissions, ICAC, Customs etc). In addition, the Commonwealth Ombudsman is being given oversight of the data retention scheme, and it will be reviewed by the Joint Committee after three years.

No mention of mass surveillance or metadata so far. Where do they come in?

Well, certainly this law, if passed, will enable our security agencies to engage in mass surveillance if they want and are able to do so, much more broadly than they can do now. They can do it already under the existing legislation, but only so far as the data is in existence (which depends on how long each provider chooses to keep it). Now they'll have unfettered access to two years' worth of data at any time.

The Europeans have determined that mass data retention is not justified by the potential benefits, and common sense says that that's obviously true.

Assuming ASIO at some stage has a big enough server farm to monitor and analyse all our metadata in its search for crazed beheaders, that needle in a haystack exercise can't possibly be a good enough reason for us all to give up this much extra privacy.

Meaning what?

As has been pointed out, the authorities will be able to know who you contacted, when you did it and what the subject line said, for every single one of your calls, texts and emails in the last two years. That's a lot of privacy.

Which brings us to the main question - what exactly are we giving up? Answer: we don't know. "Metadata" has been a taboo term for the Government since Tony Abbott and George Brandis demonstrated that they think the internet is the same as the Royal Postal Service but with tiny little posties delivering your letters down the copper wire. It isn't mentioned in the Bill, which says that the information to be retained will be prescribed in the regulations.

So we won't know what has to be kept until the regulations are made, and regulations are so much easier to slip through than legislation. That's where the elusive definition of metadata will eventually appear. The Attorney General's Department has been working on its definition for years, and still isn't confident enough to tell us what it is.

The Bill does try to clear up some of the confusion with two explicit exceptions. Service providers will not have to retain "the contents or substance of a communication", or the address to which an internet communication is sent. That seems to happily exclude both what you said in your emails, phone calls and texts, and your internet browsing history. Anyway that's the stated intention.

Really, I don't think this one is nearly as dangerous as the special intelligence operation or advocating terrorism laws in terms of its effect on our freedom of speech. It doesn't directly affect our freedoms at all; what it does is give the government's security and law enforcement arms a much longer reach into our personal worlds, without any judicial oversight. That is only okay if there's a hugely compelling reason for it, and that is absent.

No proper case has been made for this increase in capability for surveillance of private citizens. And, intriguingly, the Federal Police Commissioner Andrew Colvin at today's press conference launching the Bill said that one of the reasons this is needed is to assist in pursuing illegal file sharing - that is, copyright infringement. Mostly, that is not a crime. And certainly not one that in any way justifies mass surveillance or data retention. No doubt he's been given a slap on the back of the head for departing from script, but it was a telling gaffe.

Michael Bradley is the managing partner of Marque Lawyers, a boutique Sydney law firm. View his full profile here.