The Coalition's metadata agenda: Q&A with Scott Ludlam

The Coalition government has introduced its controversial data retention legislation into the House of Representatives, rushing through a process that could cost ISPs millions of dollars and record the data of every phone call made and every website visited in Australia.

The sudden move means the legislation, which will see Australian telcos and ISPs forced to collect and store users' metadata or 'non-content' for up to two years, could become law this year with just two parliament sitting weeks remaining.

It comes after a motley crew of crossbench senators, telecommunications companies, lobby groups and non-for-profits met at Parliament house on Wednesday to protest the legislation. West Australian Greens senator Scott Ludlam, who has spearheaded the oppostion against the Coalition's proposed regime, tells Business Spectator why this legislation needs to be stopped.

David Swan: What are you expecting from today's event, and how did it come together?

Scott Ludlam: How it came together was in the wake of the passage of the ASIO bill, going back a couple of weeks now, where it was really just the cross-benchers who actually held the government to account, and the Labor party basically failed to show up to the debate.

We decided that we really just wanted to see it happen again with the data retention laws, so we resolved at that point to bring the debate into parliament, to try and improve the technical literacy of some of the MPs who might participate in the debate, to learn from each other, because there are so many different groups and people representing different points of view who are strongly against data retention. We thought it would be really valuable to bring everybody together just to hear from each other, where everybody's coming from. So those are really the two things, firstly just to raise the literacy and the level of the debate in this building, and secondly to do a bit of planning and to learn from each other, from the various groups who are opposed. And to engage in lobbying, particularly of the ALP.

DS: Do you feel the ALP is changing its tune?

SL: Look you'd need to talk to them, I think they were proposing on Tuesday; Jason Clare and I think Mark Dreyfus put a statement out suggesting that George Brandis should but an exposure draft of the bill out. We're calling for no bill, but an exposure draft would be good to start, just to actually see where they're heading rather than hinting at what they'll do. So that's a start, but what we really need from Labor is a strong position that they won't be supporting it, because that would be the end of the debate. We don't actually need to go through this process if they just stick to principles.

DS: Your event is bringing in groups from across the political spectrum, some strange bedfellows... what do you make of it, being now aligned with the IPA for example?

SL: It's beyond left to right, and hopefully it's actually above politics. I think what we're seeing is a greater degree of co-ordination and collaboration amongst groups that might actually have not much in common apart from this issue. And to me it kind of feels as though that's our role as parliamentarians; to build those coalitions when we can.

We of course have strong disagreements on other issues but on this one there's an alignment. So we want to work with that, to work with backbenchers within both the major parties to encourage active discussion and debate internally and I think that's one of the things these groups can do.

DS: What are your main issues with the government's plan?

SL: I've got a few. First thing is even if there was no data retention proposal, the existing authorisation regime for metadata is pretty broken. There were more than 580,000 requests reported to the ACMA last year. So it's really open season on warrantless metadata snooping on Australians. Not for financial security purposes but by hundreds of different agencies all the way down to local government.

My first issue really is that the government now proposes to add a data retention scheme onto a system that's already deeply flawed, and the law basically hasn't caught up with the technology. So concerns being that to snoop on a phone call you need to put a affidavit together, you need to take that to a judge, and you need to be chasing fairly serious crime. And that's a system that's robust. It could do with some streamlining, but it's robust and most people support it. And you contrast that to this open season approach to metadata, where you just fill out two page form, rubber stamp it and send it straight to the phone company.

It's not necessary. The case hasn't been made, in the jurisdictions where it's been tried have made no difference and it's being dismantled in Europe because it's been found to be a violation of human rights. So altogether, we can't really see a case for it. We just want it to go away.

DS: This stuff has reared it head around the same time as this piracy stuff from the government. Do you feel they're linked?

SL: The government would never admit this, but I think the very fact that they want service providers to track and store data volumes, tells me that maybe part of what's driving this is that whole copyright or anti-piracy agenda, where they want to know who's hitting BitTorrent sites and how much they're bringing down, so that they can force service providers to choke the internet or potentially knock them offline. I think there's a number of different agendas, including that one, that are kind of piggybacking along under this cloak of national security. But actually it's got nothing to do with it.

DS: What is the actual agenda, if it's not national security?

SL: I don't think there's any doubt it's been driven in part by the Attorney-General's office, and by some of the agencies who have given evidence to our enquiry into this issue, that there are entirely legitimate law enforcement and anti-corruption uses for metadata, and no-one really contests that. My argument is the legal framework for protecting privacy while permitting access is really deeply out of balance and flawed.

I think that's partly what's driving it, and that's from the agencies' point of view, but from the government's point of view you've got George Brandis and Tony Abbott prosecuting really steep and expensive regulation of technology that they barely understand. I think that's partly just a desire to stand up and look as though they're doing something tough. It's just a desire to look as though they're strong and tough on national security, but actually they're quite illiterate as to the basic technology itself.

DS: Do you have a definition of metadata yourself?

SL: No, we're calling on the government to define it. At the moment we've got two working definitions; one is a negative definition which is just 'everything except content', and the other is a more formal definition that the Attorney-General's department uses as a rule of thumb. This formal definition breaks metadata into two categories, of material that identifies participants to a communication, so basically subscriber data, and then material that allows communication to occur. So maybe cell tower triangulation, and the metadata that's created in the process of the triangulation or the communication taking place.

We've been relying on that working definition, but of course that's nowhere near precise enough to give to a service provider and say 'we want you to store all of this stuff', which is partly why the industry's costs are so high.

This is an edited transcript of an interview with Senator Scott Ludlam prior to the introduction of the controversial legislation into parliament by Communications Minister Malcolm Turnbull Thursday morning.