If rational minds were in charge, last week’s announcement by the government of an inquiry into potential reforms of National Security Legislation would be seen as an admission of failure and incompetence from Australia’s law enforcement and intelligence agencies.
Virtually every year since 11 September 2001, the AFP, ASIO, and a grab bag of other acronym-enabled agencies have been successful in gaining amendments to the laws which govern phone tapping, domestic spying and overseas intelligence gathering.
Every year they make nebulous hand-waving gestures about undefined, secret threats that will befall Australia if they don’t get their own way, and every year spineless politicians give them everything they say they need. Then almost immediately the intelligence agencies come back, claiming their hands are still tied behind their backs and can they please have just one more amendment, otherwise exactly the same poorly defined threats may or may not be realised.
In essence, they keep telling our politicians that they’re incapable of effectively doing their jobs. Our politicians, too housetrained to put their credibility under serious scrutiny, keep treating them like experts by giving them exactly what they say they want. It’s one of the few areas where bipartisan agreement is trivial and unquestioned.
Never mind that our liberties suffer death by a thousand cuts. It’s only one more tiny amendment, you understand.
The bleak picture of threat and helplessness painted by the discussion paper’s introduction runs straight to the crux of the issue; part of our way of life is to communicate with each other privately, and the government proposes that obliterating that privacy is required to protect our way of life. Much of the rest of the paper continues in a similar vein.
There is much emphasis on "streamlining" and "modernising" throughout. It’s worth considering what that means. As far back as 1903 when police interception of telephone calls was made illegal in Australia, the entire point of the warrant system was to make the act of interception difficult and rare so that it would never be routinely used against the vast bulk of law abiding citizens.
Thresholds of alleged criminality were required, with interception warrants only available for investigation of "serious offences" carrying terms of imprisonment exceeding seven years. Evidence sufficient to convince a judge would need to be presented, and only then could the police listen to our phone calls behind our backs.
That deliberate difficulty served the nation’s purposes for over a century, but in the present environment where the authorities desire to run tens or hundreds of thousands of interceptions per year — the exact thing the current regime was designed to prevent — the Government’s incongruous response is to change the law to cut the thresholds, "streamline" the warrant process, enable routine driftnet interception.
Spare a thought for the likely impact on the judicial process if such tools had been available to the corrupt police in Queensland during the Bjelke-Petersen years. Or any of the other Australian police forces who’ve been the target of investigations for institutional corruption, which I think at the last count, is all of them.
The paper’s furthest overreach is the proposal to oblige organisations to retain users’ data for two years. In a nutshell, this would require our ISPs and phone companies to maintain extensive files on the communications activities of every law-abiding citizen in the country, just in case they might someday become involved in a criminal investigation.
Think, "Minority Report," only with less Tom Cruise and more mendacity.
Besides the civil liberties impact, which rightly has the netroots community in arms, there’s also a cost aspect to this which should, but probably won’t, appeal to MPs who claim to be interested in the impact of red tape on business. Data retention imposes an enormous cost on telcos, who would need to provision secure storage and backup for huge quantities of otherwise "discardable" data, which would need to be maintained to a standard capable of being tendered as evidence in a court even if it is never used, just in case its use is required.
Data retention effectively increases the cost of evidence-gathering by requiring evidence to be gathered regardless of whether it’s useful in a criminal prosecution; and outsources that magnified cost to the telecommunications providers.
Telcos aren’t charities, so they’ll pass it on to their customers, permanently increasing the cost of communications, and, by inclusion, the cost of living for all Australians. If the Opposition is unswayed by civil liberties concerns, maybe the resulting banal economic inefficiency should give them pause for thought.
Given that quite a lot of national security legislation amendments over the last few years appear to have been inspired by panic over Wikileaks, you’d also think that the Government would have learned a lesson from that experience: maintaining large stores of so-called private data will inevitably represent the kind of "attractive nuisance" that will pique the interest of people who will exfiltrate it.
As Telstra, Yahoo!, NVIDIA, AusCERT and the Department of Broadband, Communications and the Digital Economy have discovered in recent weeks, private data has a nasty way of turning into public data, and once published it’s impossible to delete.
When my private data is published, that’s a security risk for me. When everyone’s private data is published, that’s a security risk for all of us. Aren’t "security risks for all of us" exactly what "national security" measures are supposed to prevent?
One wonders whether the effort invested by the law enforcement community in tracing leaks enabled by data retention will exceed the savings in law enforcement effort gained by maintaining dossiers. When will we learn that the best way to avoid leaks of private data is to not store it in the first place?
Data retention is terrible for citizens, bad for business, and of dubious worth for law enforcement. The existing legislation already provides for lawful interception of telecommunications, and extensive cooperation between law enforcement and telcos when required to investigate crimes.
Before data retention proposals are taken seriously, the law enforcement community should be required to explain, in detail and in public, why the existing measures they’ve demanded every other year since 2001 are insufficient. Otherwise it’s just a case of, "Trust us, we had no idea what we were asking for all those other times, but this time, we’re sure…"
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