analysis Like history repeating, the Australian Government just keeps on coming up with disturbing new ways it wants to control and censor the Internet. Here’s five ways the current controversial data retention proposal is similar to its predecessor in infamy: Senator Conroy’s mandatory ISP-based Internet filter, which was shot down in flames in 2010.
Unless you’ve been living under a rock for the past few months, you’re probably aware by now that the Federal Attorney-General’s Department is currently pushing a package of highly controversial 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.
The most controversial of these reforms is a so-called ‘data retention’ policy which would require ISPs to retain data on their customers’ Internet and telephone activities for up to two years. Put simply, this policy would allow Federal Government agencies an unprecedented level of knowledge about what you do on the Internet. Records pertaining to every email and every phone call made by every Australian, and access to social networking data — the Attorney-General’s Department wants it all archived for two years.
Sound like Government control gone mad? Sound like Big Brother will be watching over your shoulder every time you turn on your PC? That’s exactly what civil rights and privacy groups are saying, and their objections have also been backed up by protests from ISPs and even free market think thanks. One of the most interesting aspects of the policy, however, is that Australia has been here before. Those of you who’ve been around for a few years will remember that one of the most unpopular proposals put forward by the Federal Government in the years from 2007 through 2010 was the mandatory ISP-based filter, which would have seen Australian ISPs block a list of sites containing illegal material.
That proposal still remains official Federal Government policy, although with the Coalition and the Greens having pledged to block its association legislation, it seems unlikely to get anywhere at this point. But there are a number of disturbing similarities between the two proposals which are worth exploring. Here’s five we came up with in just half an hour of consideration.
Both proposals were extensively discussed in secret behind closed doors: In the case of both the data retention and filter proposals, the Federal Government departments involved, respectively being the Attorney-General’s Department and the Department of Communications, Broadband and the Digital Economy, held extensive closed door talks with the ISP industry which had no public oversight.
The existence of the data retention proposal was first revealed to the Australian public courtesy of a leak in mid-2010. But ISP iiNet confirmed at the time that it had been briefed in late 2009 about the issue, at the same time as other ISPs. However, the Attorney-General’s Department is believed to have required ISPs to sign non-disclosure agreements regarding the discussions. Similarly, in April 2010, it was revealed that DBCDE had set up a protected online forum, to which it invited ISPs to discuss issues around the filter proposal.
In both cases, the departments involved did not publicly disclose the existence of the secret discussions with the ISP industry, and appeared to be disconcerted when the public was made aware of the talks by journalists who had received material leaked from the discussions. In both cases, those participating in the talks were asked to keep them secret, sometimes through legal agreements.
Both proposals were promulgated by niche interest groups: In both cases, the stimulus for the policy had come exclusively from a very small number of groups which do not appear to represent the general views of mainstream Australians on the issues concerned.
In the case of the data retention policy, the stimulus for the policy appears to have come almost solely from a small number of government law enforcement agencies: Principally the Australian Federal Police and the Australian Security Intelligence Organisation (ASIO). These two agencies appear to have been holding extensive talks with the Attorney-General’s Department on this issue for several years, behind closed doors.
In the case of the filter, it was a small group of highly conservative and sometimes religious groups such as the Australian Christian Lobby which pushed the then-Labor opposition to support a policy of mandatory ISP-based Internet filtering at the 2007 Federal Election. Some of these groups have since been discredited. For example, Prime Minister Julia Gillard last week pulled out of an attendance at the ACL’s national conference due to the group’s inappropriate views.
In both cases, the two separate policies were developed independently behind closed doors following these discussions with these small number of groups, without the chance for Australia’s public, including organisations holding different views, to be part of the policy formation process.
Both proposals assume illegal behaviour by default: In the case of the data retention policy, the proposal shifts Australia’s law regarding retention of individuals’ telecommunications records from a targeted to a broad-brush approach. In general terms, previously, ISPs would hold data on individuals and provide it to law enforcement agencies based on the belief that those individuals were suspects in a criminal investigation or that their information was pertinent to that investigation. However, under the new data retention laws, information will be held on every Australian resident — no matter whether they are completely innocent of any crime.
In the case of the filter, the proposal would have seen every Australian blocked from accessing certain categories of objectionable content online, despite the fact that only a tiny percentage of the total Australian population would ever attempt to access that data. In both cases, the proposals change Australia’s laws away from a focus on the presumption of innocence and towards a presumption of guilt.
The public consultation window was very small: In both cases, the Government appeared to only make a very minimal effort to consult the Australian public on the proposals, and especially to seek divergent views on the risks of implementing them.
In the case of the filter, the only method the Australian public had to have its say on the proposal was through the media: As the proposal was an election policy, it became official Federal Government policy following the victory of Kevin Rudd’s Labor team in the November 2007 Federal Election. Following that event, the issue was extensively discussed in the media, but never became the subject of a formal inquiry. It was touched on briefly in an inquiry into the Government’s broader classification regime, but the Government never took submissions on the proposal more broadly.
Similarly, although the Federal Government is holding an inquiry into its data retention and surveillance package, the parliamentary committee overseeing the inquiry initially only gave the public a month to make a submission to the inquiry. Subsequently, following protests by digital rights groups, that deadline was extended by two weeks. However, a number of commentators have pointed out that a number of the measures proposed under the surveillance package are extremely wide-reaching and likely merit their own individual inquiry, limiting the value of the inquiry in general.
Both proposals were opposed by most Australians: It strongly appears as though both the data retention and filter proposals are strongly opposed by the majority of the Australian population.
In a poll taken by broadband forum Whirlpool in early 2010, for example, 92 percent of respondents said they were against the filter proposal. This figure echoed similar polls conducted in 2009 by the Sydney Morning Herald and ZDNet.com.au. 96 percent of the 24,378 respondents to an online SMH poll stated they believed the filtering plan was not a good idea and impinged on their freedom, while 96.6 percent of the 1746 respondents in the ZDNet.com.au survey stated the government was completely wrong on the policy.
Similarly, a Sydney Morning Herald poll in July this year found that more than 90 percent of almost 9,000 people who responded in a single day opposed the data retention plans. The extensive submissions to the parliamentary inquiry into the proposal also displayed a strong bias against the proposal, with almost all of the 170-odd submissions received voicing criticism of the proposal.
Lastly, despite this enduring opposition to both proposals, in both cases, the Opposition initially ignored the proposals. It took several years of protests before the Opposition in mid-2010 announced it would block the filter proposals. Senior Opposition figures such as Shadow Communications Minister Malcolm Turnbull and Shadow Attorney-General George Brandis have declined to comment on the data retention proposal over the past several months. In both cases, however, Coalition backbenchers became gradually uneasy about the proposals.
In conclusion, when you examine the whole picture around both the data retention and Internet filter proposals, you’re forced to come to a disturbing conclusion. Namely, that in 2007 through 2010, a very small number of conservative niche interest groups were able to spur the Government into creating an over the top policy focused on controlling all Australians’ behaviour on the Internet. That proposal was developed through secret, closed door talks, with very limited public consultation, and strongly opposed by most Australians. And the Coalition ignored it for several years.
And now, with a new group of data retention and surveillance proposals, it’s all happening again. Disturbing, isn’t it?