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.

opinion/analysis
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.

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1. TechinBris
   Posted 31/08/2012 at 1:17 pm | Permalink | Reply

   “You’ll find the IPA active in a whole range of areas.”
   Definitely, but mostly extolling the virtues of the unethical exploitation of people. I have learned after reading so much of their diatribe, to always pick away the glossy veneer of the shiny black piano finish presented to the public, to experience the scratch and sniff blackness of the raw sewerage of unethical human exploitation that under lines most of their published works. Ever wondered why “Neither major side of Australian politics openly supports”, that you have written, makes it blatantly obvious as to why!

   I doubt the IPA cares a twat of human compassion (if they were capable of it) about the privacy of the average Australian Joe or Sheila, but they’d be horrified at the though of the Corporate Sector’s privacy being breached by the Oz Log data being used to find if any of their supporters are guilty of unethical human exploitation for profit. EGAD!!!!

   I always hope people are civil in their actions in business, plus it is a dog eat dog environment and you must win to survive. But people are people and we have to live together and survive together with finite resources on a rock orbiting a G-Class Star. We don’t have anywhere else yet. Surely we can respect each other enough to value each others privacy, right to a reasonable and just society, without returning to Victorian and Edwardian values of unethical human exploitation, lack of civil rights and privacy invasion. Australian’s thought they’d evolved past those relics of past injustices.

   Alas, it seems our Liberal and Labor Governments, plus Neo-Conservative Organizations haven’t evolved at all. Will the Australian Citizen have to drag them behind us, kicking and screaming, bloody fingernails gouging into the concrete of time, whilst they longingly look back, mesmerized, to their glorious past whilst stabbing us in the back as we attempt to take our society forward.
   Into the future together, evolving and progressing in a changing world, is something we should aspire to be as a nation. Things changed in the past for a reason. Mostly because those solutions had problems which shamed us and we found abhorrent. Solve the solutions with something new that “might” work, is surely better than something we tried and it did not. To repeat the same mistakes would be futility in the most extreme.

   Just say “NO!” to devolution and unethical human exploitation. It sucks.

   Good article Renai. :{D

   • TechinBris
     Posted 31/08/2012 at 1:50 pm | Permalink | Reply

     OMG! I dropped a “T” from thought *sob* I am shamed for it. *sob* :{)

2. Bruce
   Posted 31/08/2012 at 2:17 pm | Permalink | Reply

   >It is increasingly clear that the Federal Attorney-General’s Department has reached too far with this one.

   You mean in one step. Look for the scaled back proposition that stops short of the full 7 year OzLog but grants the public service the authority to extend the mechanisms without further parliamentary oversight (like the legislation controlling the DNA destroying full body scanners at the intl airports) – win:win, for both the politicians and the public service.

   >the IPA is especially well-read within Liberal Party circles.

   So that is what their litter boxes are lined with. I had often wondered what it took to reach an NLP drone, the cries of Australians obviously doesn’t do it. Thanks for the heads up.

   Have to agree with TechinBris – despite the shameful spelling mistake – the only reason the think tanks are concerned about this is that their corporate sponsors might get tangled up in it.

   • TechinBris
     Posted 31/08/2012 at 2:21 pm | Permalink | Reply

     I am so embarrassed! *sniff*

3. James Q
   Posted 31/08/2012 at 8:42 pm | Permalink | Reply

   I honestly have trouble telling if the IPA is a serious organisation, or a parody of one.

   Check out their policy wish list:

   http://www.ipa.org.au/publications/2080/be-like-gough:-75-radical-ideas-to-transform-australia

   TLDR;

   http://qkme.me/3qpk7i

   The only thing I can agree with is their position on the data retention policy.

   • Avid Gamer
     Posted 01/09/2012 at 10:34 am | Permalink | Reply

     Check out their policy wish list:

     http://www.ipa.org.au/publications/2080/be-like-gough:-75-radical-ideas-to-transform-australia

     WHAT A LIST!!! Just as well the vast majority of decent Australians would be greatly horrified if such a list ever became a reality. It made me sick just reading the list let alone living in such a society.

     • TechinBris
       Posted 03/09/2012 at 12:20 pm | Permalink | Reply

       Once again, Renai spelled it all out in a sentence of “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.”
       Neutrally nice (someone big won’t financially penalise Delimiter for it) and saying it to the point really.
       Well done Renai! Thinking cap is obviously working, even considering the “Curse of the West” we all have to deal with.

   • Russell Stuart
     Posted 03/09/2012 at 10:52 am | Permalink | Reply

     Yeah, glad I was sitting down when I saw the headline. This is the first time I’ve been on the same side of an issue as the IPA. I am not sure why they don’t just pack up and move to the USA. I am sure they would be much happier under their capitalist cronyism model.

4. Daniel
   Posted 31/08/2012 at 10:54 pm | Permalink | Reply

   Is this an IPA sponsored article?

   You forgot they also want to destroy and sell the National Broadband Network, along with everything else the previous governments have put in place.

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