news One of Australia’s most prominent conservative and free market-focused think tanks has published a strongly worded critique damning the Federal Government’s planned telecommunications surveillance and data retention reform package as “excessive” and “systematically” breaching Australians’ right to privacy.
The Institute of Public Affairs is an independent, non-profit organisation which describes itself as supporting the traditional ideals of liberalism, being the free flow of ideas, free markets and capital flows, small government, representative democracy and so on. It is usually referred to by commentators as being associated with the conservative side of politics in Australia, but also often espouses more traditional liberal ideals which neither major side of Australian politics openly supports.
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.
In a submission to the Parliamentary Joint Committee on Intelligence and Security, which is examining the proposed reforms, IPA representatives Chris Berg and Simon Breheny expressed significant concerns regarding the proposals outlined in the Government’s discussion paper on the matter.
“The Institute of Public Affairs believes many of the national security proposals contained in this Discussion Paper are unnecessary and excessive,” the pair wrote. “Many of the proposals curb civil liberties, systematically breach Australians’ right to privacy, and breach basic rule of law principles.”
The IPA focused its criticism of the Attorney-General Department’s plans on perhaps the most controversial aspect of them; a so-called data retention regime which would require Australian ISPs to retain data on the activity of their users for up to two years — including records of telephone calls made, emails sent and other forms of Internet activity. “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”.
“Data retention would be a continuous, rolling, systematic invasion of the privacy of every single Australian, only justified because a tiny percentage of those Australians may, in the future, be suspects in criminal matters. Indiscriminate data retention is an abrogation of our basic legal rights. Data retention regimes make internet users guilty until proven innocent.”
The IPA cited a decision in 2009 in Romania by the European country’s Constitutional Court, which found that no concept of privacy could exist if such a data retention policy existed. The court overruled an attempt in that country to implement a data retention policy. “We agree. The imposition of such an extraordinary, systematic and universal program would render any presumed or existent Australian right to privacy empty,” wrote the IPA.
Aside from these concerns, the IPA pointed out that there were also “serious practical concerns” with the data retention proposals.
“The creation and long term storage of such a large amount of data would be highly risky,” the group’s submission stated. “ISPs would be responsible for the security of that data. There have been a number of recent, high-profile data leaks from government and corporate organisations. Mandating the creation and storage of even more data would exponentially increase both the risk of these leaks and the potential damage from having done so.”
Instead of imposing a universal data retention regime, the IPA argued that “strictly limited, supervised, and transparent data preservation orders on targeted suspects would strike the right balance between individual rights and law enforcement”, although it added no at this time “no such correct balance has been struck” — with the recent Cybercrime amendment legislation giving all Commonwealth agencies — not just law enforcement agencies – the ability to issue orders that a certain telecommunications user’s data be retained.
In addition, the IPA pointed out that law enforcement authorities already had access to a large amount of data about telecommunications users. “Phone companies collected their customer’s data for billing purposes already; those existent records were available under warrant. By contrast, mandatory data retention policies would necessitate the creation of a massive new record of customer activity,” wrote the IPA.
In general, the IPA said that the Government had not yet made its case sufficiently for the surveillance proposals to go forward. “Significant new powers require significant justification. Yet the discussion paper makes only a very weak attempt at explaining the rationale for the proposals. The discussion paper makes reference to a general threat of cyber-terrorism, failing to adequately engage in the question of how these expansive powers are required to face real threats to Australia’s national security.”
“The government has not demonstrated that the major security threats posed by terrorism are not sufficiently dealt with under existing security laws. In February 2010, the federal government’s Counter Terrorism White Paper argued that ‘terrorists have not shown a strong interest in conducting cyber attacks.’ Yet in June that year the Attorney-General’s Department was already investigating the possibility of data retention … The Discussion Paper does not offer evidence of an imminent cyber security threat which would require the extraordinary security powers proposed in the discussion paper.”
In general, the package of surveillance reforms discussed in this article 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 Federal Government’s proposed new surveillance and data retention 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, 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 Government has argued that the reforms are necessary for national security and law enforcement reasons. “We must stay one step ahead of terrorists and organised criminals who threaten our national security,” Federal Attorney-General Nicola Roxon said, upon announcing the package. “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.”
Over the next week Delimiter will be examining more of the submissions to the Parliamentary Joint Committee on Intelligence and Security’s review into the Attorney-General’s Department’s proposed surveillance reforms.
The intervention of the IPA in this matter says a great deal about the seriousness of the proposals which the Federal Attorney-General’s Department is trying to push through Parliament at the moment.
The IPA is not a lightweight organisation, and it is not primarily a digital rights or privacy-focused lobbying organisation, such as Electronic Frontiers Australia or the various civil liberties (primarily maintained by lawyers) and privacy groups which often comment on these kind of matters pertaining to data retention and telecommunications surveillance in Australia.
In fact, the IPA has a much broader brush of policy areas it is interested in, as its extensive staff roster makes clear. Climate change, intellectual policy, economics and finance policy, food and the environment, governance and so on … you’ll find the IPA active in a whole range of areas. And because of this, the organisation’s publications are also quoted in a wide range of areas. What the IPA’s submission to the Parliamentary Joint Committee on Intelligence and Security inquiry on these proposed new national security powers implies is that this surveillance proposal, particularly the data retention component, is so controversial that it has already attracted the interest of the broader mainstream community, like similarly unpopular policies such as Labor’s mandatory Internet filter before it.
This will likely prove to be a headache for the Federal Government and the Attorney-General’s Department. From intellectuals to big industry chief executives to former senior parliamentarians and just ordinary citizens interested in the traditional ideals of liberalism, the IPA is very widely read, and now a great number of those individuals will also be suddenly aware of the national security reforms currently being debated. It is increasingly clear that the Federal Attorney-General’s Department has reached too far with this one. It will be fascinating to see how the Parliamentary Joint Committee on Intelligence and Security reacts. With the IPA involved, I would not be surprised to suddenly see a flurry of motion from the Coalition politicians on the Committee; the IPA is especially well-read within Liberal Party circles.