news Critics of Federal Government’s proposed data retention and surveillance scheme have labelled suggestions by police that Australians’ telecommunications data could be retained indefinitely as “appalling”, and pointed out that there is very little likelihood of political support for such a 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.

Last week, representatives of federal and state police forces reportedly told a parliamentary committee into the proposed reforms that they would actually prefer if ISPs were forced to retain data on all Australians’ telecommunications records indefinitely — instead of for a mere two year period, as is currently proposed. In a statement issued last week, the Pirate Party Australia heavily criticised the idea.

“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.

“While arguing about ‘how out of date interception laws are,’ they seemed oblivious to the fact that an intrusive scheme of warrantless retention of data was already passed under the Cybercrime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.”

The Pirate Party said it was alarmed by the cavalier attitude displayed by the police agencies as to the “burdensome” aspect of warrants and the lack of regard to ways such powers could be abused and compromise privacy.

“The constant assertion that ‘only metadata will be stored’ is at best a disengenous attempt to minimise the very real personal content present in such data. At worst it shows a reckless lack of understanding of what this information can actually reveal about people’s personal lives,” Olbrycht-Palmer continued.

“We categorically reject the idea of large scale monitoring of all Australians. It is telling that countries with past histories of overbearing surveillance have rejected such schemes as too extreme, yet a recent article in the Sydney Morning Herald reveals that Australia is now a world leader in surveillance. Australia has been lucky to have experienced a history of democratic freedom, perhaps we have become too complacent to the dangers of encroaching upon our rights and civil liberties.”

Separately, in the same hearings last week Australia’s financial regulator, the Australian Securities and Investment Commission, 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.

Speaking on the ABC’s The Drum television show last week, Chris Berg, research fellow with free market thinktank the Institute of Public Affairs (which opposed the reforms), stated that both new lines pushed by ASIC and the police representatives were “obviously not going to happen”, with Berg not believing there was currently any serious case being made within the Government for either indefinite data retention or data beyond metadata to be retained.

However, he did note that he believed the discussion in this area was “incredibly important”, as he pointed out that the Federal Government had been careful to officially push the current package of data retention reforms as being necessary to stop only extremely serious crimes such as terrorism or the dissemination of child pornography. These areas are not covered by regulators such as ASIC, meaning the data retention powers would actually be used for less serious crimes.

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.

Federal Attorney-General Nicola 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 several weeks ago. “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 also don’t think there’s any appetite within the Federal Government for either indefinite data retention or for data beyond metadata to be kept. However, it’s not hard to see this kind of ‘scope creep’ being added on to the data retention and surveillance package as an addendum, say three or four years down the track, when the controversy has died down. That, in my opinion, is the real danger here. As Greens Senator and Communications Spokesperson Scott Ludlam has consistently pointed out, this legislation gets modified regularly already.