Delimiter » scott ludlam

Politicos reject NBN referendum idea

Renai LeMay — Tue, 15 May 2012 03:32:55 +0000

news A number of politicians and lobby groups have panned the idea that Australia could hold a non-constitutional referendum on whether Labor’s National Broadband Network policy should proceed following the next Federal Election, with most stating that such a vote would be unnecessary given existing popular support for the project.

In an article published over a week ago, Delimiter raised the idea, highlighting the fact that such referendums, called ‘plebiscites’ in Australia, have been held a number of times over the past century since the Australian Constitution was formed, on topics as varied as conscription and Australia’s national song. Such votes do not modify the Constitution, but can be used by the Government of the day as a guide to the opinion of its citizenry on its policies.

The aim of such a referendum in the context of the NBN would be to ensure the continuance of a long-term infrastructure project, in the face of sharp and ongoing disagreement between the two major sides of Federal politics about how and whether the project should be carried out.

Neither Communications Minister Stephen Conroy nor Shadow Communications Minister Malcolm Turnbull responded to requests for comment on whether they would support the issue. However, several minority parties and special interest groups did.

Greens Communications Spokesperson Scott Ludlam, whose party supports the NBN, said he was “a bit sceptical” of the potential for an NBN referendum, partly because of “the long and distinguished record of total failure” which referendums had suffered at the hands of the populace. “The only ones that get up are the ones that have cross-party support,” the Senator said.
Ludlam said he agreed with the premise the argument for an NBN referendum, being that the Federal Government couldn’t roll out national infrastructure — be it the NBN, bullet trains or road networks — on a “three year churn”.

However, he pointed out the NBN already had a lot of forward momentum. Extensive contracts with suppliers and construction companies for the NBN are already locked in and delivering, and the Coalition will face a bill estimated in the Federal Budget at $1.8 billion if it wanted to cancel the NBN wholesale. In addition, Ludlam said it wasn’t clear yet what would happen yet at the next Federal Election (which the Coalition is currently expected to win), noting that anyone who claimed to be able to forecast what would happen in the next twelve months in Federal politics was mistaken.

Of the independents in the Federal Parliament, most are on record as supporting the NBN, but only one — Tasmanian Andrew Wilkie — was willing to comment on the idea of a NBN referendum. Wilkie noted he wouldn’t support the idea. The NBN is very popular in Tasmania and I support it,” he said. “Moreover, it is already being built.”

Communications Alliance chief executive John Stanton, whose organisation represents many of Australia’s largest telcos, said that the idea of a non-constitutional referendum on the NBN sounded attractive from some angles.

“But I think in reality we have already had it – at the last Federal Election,” he said. “That election outcome – given the prominence afforded to the issue in the campaign and in the deliberations of the Independents as to who would form Government – sent a clear signal that Australians want a ubiquitous high-speed broadband network to aid their daily lives and business capabilities – and that they are willing to see the Government invest in making that happen.”

“I am not sure that a referendum on the terms proposed at the next election would add much to that conclusion,” Stanton added. “It might even cloud the issue if we emerged with a response that said that the NBN roll-out should proceed exactly as envisaged under the current NBN Co business plan – or if the answer (as so often happens in Australian referenda) was “No”.”

The Comms Alliance chief said his reasoning on the matter was that the NBN plan would “inevitably change” during the roll-out period in any case.

“Mike Quigley has said himself that the learning of the early phase roll-out will likely inform changes in the plan,” he said. “Just a few examples are that some individuals and communities will opt to buy their way onto the fibre footprint, some communities will opt for satellite coverage instead of fixed wireless and roll-out experience might influence the equipment and roll-out methods used. I would imagine that at some stage during the roll-out the technology will evolve from GPON to 10GPON. Evolution of the plan is entirely appropriate as more experience is gained, and given the march of technology during the period.”

Equally, Stanton said, if there was a change of Government, the incoming Government should have every right to scrutinise the project and make amendments – provided it heeded the message that the Australian public wants an outcome: “a high speed network that will add value to their lives and inject horsepower into the development of Australia’s digital economy”. “So the outcome and public benefit should be paramount,” he added. “I believe that Australian public has already sent a message about what they want – a message that I think has been heard clearly by both sides of politics.”

opinion/analysis
I kind of suspect that the idea for a NBN referendum would be welcomed with this kind of reaction. The general view on the idea, which was also espoused by a number of readers over the past week, was that it is a nice one in theory but unworkable in practice.

Perhaps this says more about our political system in general than it does about the NBN. Like many people, I am one of those Australians who doesn’t believe that a national poll between two largely undesirable political options, many of whose policies you will both like and dislike, is a particularly democratic system of running a country.

I’d like to see a more nuanced system of more direct democracy; one in which the Government polls its citizenry on a more regular basis, on smaller issues. One suspects that if this sort of system could be used, issues such as the NBN, gay marriage, Australia’s intake of asylum seekers, our participation in the Iraq and Afghanistan wars and other issues could have been resolved much more quickly and painlessly … and according to the wishes of the general population, rather than a small segment of it.

In 2012, it is also clear that the technology for such direct democracy does exist; with the appropriate security systems in place, it could be done remotely over the Internet. Of course, one also suspects that the debate over the implementation of such a system would prohibit it being implemented in the first place ;)

Image credit: Still from Gladiator

Senate blocks release of secret piracy docs

Renai LeMay — Fri, 11 May 2012 01:49:06 +0000

news The Federal Government and Opposition have teamed up to block a motion put by the Greens in the Senate which would have forced the Attorney-General’s Department to produce a series of documents regarding its closed-door meetings on Internet piracy in February this year.

On 8 February this year, major Australian ISPs sat down with the representatives of the film, television and music industries and the Federal Attorney-General’s Department, with the aim of discussing a potential industry resolution to the issue of online copyright infringement. The meeting was the fourth such meeting to be held, after a series of other meetings were held late last year under similar circumstances.

However, the Attorney-General’s Department has used a series of complex legal arguments to deny the release of documents associated with the meetings under Freedom of Information laws — redacting, for example, an entire 14 pages of notes taken by a departmental staffer at the event and other four pages of notes taken by a senior staffer from Communications Minister Stephen Conroy’s department.

Subsequently to the censorship of the FoI request, Greens Senator and Communications Spokesperon Scott Ludlam filed a motion in the Senate in March requesting that the Attorney-General’s Department produce a list of invitees and attendees at the February meeting, notes and minutes arising from the meeting, any documentation issued to attendees and any internal departmental correspondence regarding the meeting — as well as documents relating to future meetings.

However, the motion came to fruition on Wednesday this week, it was blocked overwhelmingly in the Senate, with both the Government and Opposition declining to support it. In the Senate, Ludlam noted for the record that the Greens supported the proposal, while “the rest of the chamber opposed it”. The Coalition did not take the chance to hold the Government accountable on the matter. In the past, Shadow Attorney-General George Brandis and Shadow Communications Minister Malcolm Turnbull have not responded to requests to comment on the issue.

The news is now the third time which attempts to retrieve information regarding the secret piracy talks have failed.

In April, the Federal Attorney-General’s Department conducted an internal review of the decision by its Freedom of Information officers not to release the sensitive documents. At the time, a senior office of the department found that its decision to substantially block the Freedom of Information request was valid.

“I have decided that disclosure of these documents would be contrary to the public interest,” the department’s director of its FOI and Privacy Section, Malcolm Bennett said at the time in one argument made. “My reasons for so concluding are essentially the same as [AGD senior legal officer Jane Purcell]‘s— that is, that the discussions that are taking place are at a delicate and sensitive stage.”

The talks have gained an extra level of potency following a High Court decision in mid-April which found that major ISP iiNet was not responsible for the Internet piracy actions of its users. At the time, the Australian Federation Against Copyright Theft, which represents film and TV studios, said the loss illustrated that the Government needed to step in and take action on the issue of Internet piracy.

In response, Federal Attorney-General Nicola Roxon said the Government would closely examine the case, but added that the closed-door meetings between the content and ISP industries on the matter would continue. Despite this statement, it is believed that no further formal meetings have been held or scheduled by the Attorney-General’s Department on the issue since February.

The Australian newspaper has reported that ISPs have taken a stronger stance against copyright holders in dealing with the Attorney-General’s Department since the High Court decision. However, it also reported that a second set of informal meetings between a smaller group of industry stakeholders had also been held by the Attorney-General’s Department on the issue.

opinion/analysis
I really don’t understand the Opposition. This is a political group which will rail against the Government at every opportunity — on asylum seekers, on the National Broadband Network, on the carbon tax — the negative vitriol is incredible. And yet, when given a concrete chance to hold the Government of the day accountable on an issue of high public interest such as Internet piracy, the Opposition doesn’t take it.

All it would have taken for the Opposition to hold the Government accountable on this issue would have been for it to vote for the Greens’ motion to produce these secret documents. Instead, the Opposition chose to support the Government in keeping information in the public interest from being made public. Incredible.

As for Shadow Attorney-General George Brandis … do your job, George; realise that there has been public interest in this important issue for six months now, that it’s been covered in several national media outlets, and that the Labor Government is both holding secret meetings with industry and trying to stop that information from coming to the public eye. Keeping the Government accountable on this issue serves both the Coalition’s political interests as well as the public interest. Can’t you see your way clear to getting out of bed for this kind of free win?

Greens demand Australia cancel ACTA participation

Renai LeMay — Tue, 08 May 2012 01:29:35 +0000

news The Greens have demanded that Australia’s Government cancel its participation in the controversial Anti-Counterfeiting Trade Agreement international treaty in the wake of an expected imminent rejection of the proposal by the European Union and significant and ongoing global protests against a number of its terms expected to harm Internet freedom.

ACTA is a multinational treaty which aims to establish international standards for the enforcement of intellectual property rights, including setting a framework to tackle counterfeit goods, generic medicines and copyright infringement. It was signed last year by a number of large first-world countries such as Australia, Canada, Japan, Singapore and the United States.

However, the general public has been excluded in many countries from the process of negotiating the treaty, and critics have slammed it, noting it could potentially affect digital rights, freedom of expression and privacy. Late last week, European Commissioner for the Digital Agenda Neelie Kroes said that ACTA was unlikely to come into effect in Europe, despite the fact that most of the 27 EU states have signed the treaty. The Verge has reported that ACTA is currently being investigated by the European Court of Justice over concerns that its privacy provisions could breach European law.

In Australia yesterday, Greens Communications Spokesperson Scott Ludlam, who has been a strident critic of ACTA, participated in a fraught exchange in a hearing about the treaty (transcription in PDF here) with officials from the Department of Foreign Affairs and Trade and the Attorney-General’s Department, which have been overseeing Australia’s participation in ACTA.

Ludlam told the bureaucrats that the Joint Committee on Treaties, which he sits on, had taken a substantial weight of evidence, “much of it pretty damning”, from experts in intellectual property.
“A lot of that evidence has been strongly negative,” he said. “I have lost track of the exact number of times we have been told that this thing is broken — it cannot be fixed, it cannot be amended, and it needs to be rejected in its entirety. Presuming you have had the time to review that evidence, has any of the evidence that has been put to this committee by experts in this field giving you cause to maybe pause and reconsider some of the things that we are signing up to?”

In a separate statement ahead of the committee hearing yesterday, Ludlam said the “ACTA bandwagon has crashed” and it was “time for Australia to get off”. “I am hoping [DFAT] will take a second look, and conduct a proper analysis on the threats to privacy, cheaper medicine and our economic interests posed by this Agreement,” he added. “If we can persuade the Government to at least conduct a proper National Interest Test that will be a good start.”

“In the meantime, this proposed Agreement is getting a bucketing in Europe and will probably never see the light of day, and here in Australia the Committee has taken compelling evidence from a range of experts that sharply contrast with the Australian Government’s uncritical and utopian position on copyright enforcement.

However, in the committee hearings this week, government officials supported Australia’s participation in ACTA, and denied the treaty would have a negative impact on IP law or Internet freedom in Australia. George Mina, an assistant secretary with DFAT, said he understood the European concerns around ACTA, but said Australia’s legal environment wouldn’t be affected by the treaty.

“I think it is fair to say that many of the concerns that we have seen on the street in German cities in recent weeks and the last couple of months pertain to internet freedom questions,” he told the committee. “You have seen a large number of young people very concerned about the potential impact on internet freedom questions. There is no doubt about that.”

“I have addressed some of those questions before and I can do so briefly again and just make the point that nothing in ACTA impacts on internet freedom in Australia. Our laws comfortably meet the requirements set out by ACTA in respect to the enforcement of intellectual property rights in the digital environment. So absolutely nothing will change in respect to internet freedom.

“I can say, without maligning the views of those who choose to protest, in respect of the Australian jurisdiction there has been some misunderstanding about the impact of ACTA on internet freedom. There is absolutely no doubt about that. I have spoken very directly to many of the people who are making some of these claims and tried to take them through the text .. There will be no change. So there will not be an impact on internet freedom whatsoever in Australia.”

Mina said that in general, Australia’s regime for IP protection and enforcement reflected a “balance” between the objectives of creating and distributing knowledge and the rights of producers on one hand, and the legitimate interests of users of IP on the other hand. He said that during the ACTA negotiations, there was “significant pressure” from other negotiating partners to “alter that balance in certain respects”.

“We can attest to the fact that Australian negotiators fought hard in the negotiations in order to protect the balance inherent in our law,” Mina added. “We were ultimately successful in doing so. We were of course also successful in ensuring that same balance was reflected in the emerging international standard. We were very pleased that we were able to achieve this result for Australia. There will therefore be no regulatory change whatsoever in Australia as a result of ACTA.”

However, others didn’t appear so sure that ACTA would have no impact on Australian law. Specialist IP lawyer and academic Luigi Palombi told the committee hearing yesterday that ACTA was “a terrible document” that laid the framework for future changes.

“The legislation may not necessarily come directly through ACTA,” he said. “It may come through subsequent agreements—for example, the trans-Pacific partnership agreement that is currently being negotiated. ACTA is more like a vehicle for change—it creates the environment for change—but the changes may come through other agreements. This is the real problem with ACTA. That is why I say that you cannot look at ACTA in isolation from what already exists in terms of Australia’s international obligations in relation to intellectual property and those that are currently being negotiated or those that may come in the future.”

“To read ACTA in isolation to the plethora of other international agreements such as TRIPS, the US-Australia Free Trade Agreement and the forthcoming Trans-Pacific Partnership Agreement also being negotiated in secret talks is to misunderstand the role which ACTA will play in a carefully crafted strategy designed to take more and more of the public domain out of the hands of the Australian people and deliver it into the hands of those who have the money to persuade unsuspecting bureaucrats that they are entitled to claim products of nature as their own inventions.”

Ludlam didn’t appear to believe the committee hearing this week had been very productive. “ACTA hearing has been like banging my head on a polite and respectful piece of concrete,” he said on Twitter yesterday “… that was a particularly bad example of denial dressed up as dialogue.”

opinion/analysis
At the moment I think many Australians are unsure as to why the ACTA treaty has attracted so much criticism in Europe. For those are uncertain about this, I encourage you to read the following article by David Meyer, which was published in the Guardian in February. Perhaps the following paragraphs will give you some indication as to why digital rights activists are so upset about this treaty:

“The Anti-Counterfeiting Trade Agreement is, despite its name, effectively an international treaty that forces signatories to criminalise “commercial-scale” copyright and trademark infringement … ACTA criminalises activities such as breaking the digital locks on rights-protected files, or even distributing tools to help people do so. Stripping the artist information from a music file becomes a crime, as does decrypting content that has been scrambled for copyright protection. ACTA also codifies the flawed idea, in calculating damages from so-called piracy, that every unlawful download represents a lost sale.

ACTA ostensibly targets big players, but, when it comes to its application on the internet, its definition of “commercial-scale” infringement is loose enough to also cause trouble for individuals.”

In Australia, it seems relatively clear at this point that no Australian law needs to be changed for the nation to ratify ACTA, with our existing IP law already covering much of what the treaty discusses. And that IP law appears to have worked quite well for the nation over the past decade, in my opinion, in achieving the ‘balance’ that DFAT assistant secretary George Mina described. In addition, the Greens have so far not been successful in uncovering a so-called ‘smoking gun’ provision in ACTA that would have dramatic implications in Australia beyond our existing laws.

Some of Senator Ludlam’s questions to DFAT this week on ACTA appeared to go towards a potential ability for ACTA to constrain future IP policy development in Australia. But again, it seems as though the treaty isn’t likely to have a substantial impact on this area either.

It is likely for these reasons that there have so far been no widespread protests in Australia against ACTA, and why locally, apart from some degree of ill-feeling and suspicion from the Internet community, there hasn’t been a lot of controversy over the treaty.

My attitude towards ACTA in Australia right now is that we should be ‘alert but not alarmed’. The treaty, whilst it has some concerning provisions, doesn’t appear to be about to bring the Internet as we know it down around our ears, and in practice won’t change much of anything in terms of Australia’s regulatory environment around intellectual property. But we should still keep an eye on it. Who knows where this controversial initiative will go in future, and there’s always the potential for something much worse to be built on top of the foundation ACTA has laid.

Image credit: Lukas P, Creative Commons

Pirate Party slams ‘unjust’ surveillance upgrade

Renai LeMay — Mon, 07 May 2012 01:31:58 +0000

news The Australian division of digital rights political movement the Pirate Party has slammed Federal Government plans to “unjustly” boost online surveillance powers by law enforcement agencies, describing the initiatives as “steps towards a police state”.

Last week, Attorney-General Nicola Roxon revealed a wide-reaching program to substantially reform its telecommunications interception and surveillance powers with the aim of bolstering the ability of law enforcement organisations to fight crime, including the introduction of a so-called “data retention” scheme that has attracted a great deal of controversy in Australia under the ‘OzLog’ banner.

Provisions under the ASIO Act for the intelligence agency to request warrants are to be modernised and streamlined, and the agency is to gain the power to disrupt a target computer for the purposes of accessing the information on it — or even to access other third-party computers on the way to the target machine. The Government is also interested in establishing an offence which would allow Australians to be charged with failing to assist in decrypting encrypted communications. Also on the cards is a data retention protocol which would require ISPs, for example, to retain data on their customers for up to two years.

Roxon said that the “potential” reforms would be examined by the Parliamentary Joint Committee on Intelligence and Security through public hearings, noting that this was “the beginning of the process”, and that the Government was seeking “diverse views” before determining which legislative reforms it would pursue.

However, in a statement released this morning, the Pirate Party Australia said it was “furious” about the proposed legislative changes. “It seems to now be a weekly occurrence that the Government adds a new act to its ‘security theatre’,” said Brendan Molloy, Pirate Party Australia Secretary. “If the Gillard government cares so dearly about citizen input, why were expansive changes to the ASIO Act – changes that would potentially allow ASIO to target Wikileaks – pushed through last May without public inquiry?”

“Nothing about warrants should be streamlined. It is an affront to due process to weaken judicial principles in the name of ‘counter-terrorism’, which seems to be the catch-cry of anyone unjustly wanting more power. We oppose these steps toward a police state.”

The party noted that it also stood strongly against any data retention regime, on the grounds that it was “an unreasonable invasion of privacy and human dignity”. “Under the proposal ISP’s will be required to store all communications for two years so ASIO can go through our personal data at their leisure. This is akin to the post office opening and photocopying all mail before sending it on to its destination.” said Simon Frew, Pirate Party Deputy President. “The previous Attorney-General, Robert McClelland, tried to pass similar legislation but backed away after a significant public backlash.”

“If the goal of the ‘war on terror’ is to defend ‘Western values’ we have to ask ourselves what those Western values are. Many of the rights and freedoms we have enjoyed are being taken away from us in the name of ‘national security’. With legislation like this we are losing our right to privacy and our right to due process. The attacks on the Occupy movement demonstrate the erosion of our right to speak out. Increased government secrecy is an attack on the fundamental right to know what our government does in our name. All of this is leaves us with the question: ‘have the terrorists won?’”

The Pirate Party isn’t the only political organisation to have instantly registered protest against the changes.

Last week, Greens Communications Spokesperson Scott Ludlam said the Greens welcomed a public consultation on the proposed changes, but added that the Attorney-General’s Department was “notorious” for “cheerfully ignoring” the advice of experts, interest groups and the general public when it came to consultations. “This looks like an ambit claim for surveillance overkill, but nevertheless, the Australian Greens will work closely with legal and privacy experts as well as ISPs and concerned citizens to turn back this unwarranted invasion of Australians’ online privacy,” he said.
Of particular concern was the Government’s data retention plans.

“Today’s announcement starts the next chapter of the ‘data retention’ debate (#ozlog) which the Government should have backed away from,” Ludlam said in a statement. “This is the idea that all our personal data should be stored by service providers so that every move we make can be surveilled or recalled for later data mining. It is premised on the unjustified paranoia that all Australians are potential criminal suspects.”

Ludlam highlighted the fact that the Australian public only knew about the data retention scheme plans ahead of time because of a “courageous” leak.

That whistleblower understood that giving data retention powers to law enforcement and intelligence agencies undermines the very rights and liberties they are ostensibly empowered to protect,” Ludlam said. “Data retention as envisaged by this government will entrench enormous databases that can be mined for precise patterns of our movements, purchases, interests, friends and conversations. This interception, copying, recording and disclosure of our data is a means to retroactively police the whole population.”

opinion/analysis
The Pirate Party’s opposition on this issue is somewhat predictable; the party notoriously jumps up and down whenever there is a civil liberties or privacy political issue with relation to the Internet which pops up. However, what is interesting about this situation is the changing dynamic of the players in the public discourse around Internet rights in Australia.

It used to be that if there was an issue of digital rights in Australia, that Electronic Frontiers Australia would instantly and loudly speak up on the issue. This was certainly the case regarding the Government’s controversial Internet filtering plans. However, over the past year the EFA has taken a bit of a backburner on these kinds of issues. Now, whenever these kinds of issues arise, it appears that it’s more the Greens and the Pirate Party Australia which are raising their voices on the issues of digital rights and privacy.

I have somewhat mixed feelings about this fact.

On the one hand, it’s fantastic to have the Greens, who have a strong, mainstream voter base, campaigning constantly for digital rights. And it’s also great to have a relative fringe group such as the Pirate Party (although, as we have noted previously, its policies are actually also pretty mainstream in 2012) active constantly on this front as well.

But the EFA had always stood apart as somewhat of an independent organisation which reached out to all sides of politics on these kinds of issues, and sought to present essential truths about the nature of the Internet, without an overt political background (apart from its strong libertarian streak).

Personally, I would like to see the EFA try to find its voice on these kinds of matters again over the next year. If the EFA loses its voice on digital rights permanently in Australia, especially the kinds of critical issues which the Attorney-General’s Department raised late last week, then the Australian conversation on such issues will be all the poorer.

Image credit: Anja Ranneberg, royalty free

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Govt seeks substantial boost to surveillance powers

Renai LeMay — Fri, 04 May 2012 07:31:58 +0000

news The Federal Government today revealed a wide-reaching program to substantially reform its telecommunications interception and surveillance powers with the aim of bolstering the ability of law enforcement organisations to fight crime, including the introduction of a so-called “data retention” scheme that has attracted a great deal of controversy in Australia under the ‘OzLog’ banner.

The package of reforms which are being promulgated by the Federal Attorney-General’s Department include a number of modifications to four pieces of legislation; The Telecommunications (Interception and Access) Act, the Telecommunications Act, the Australian Security Intelligence Organisation Act and the Intelligence Services Act.

At this stage, the Government has not yet released the precise details of the legislative changes it wants to make. However, Delimiter has seen government documentation suggesting that that the changes are extremely wide-reaching. For example, the Government is seeking to modify aspects of the Telecommunications (Interception and Access) Act that relate to the legislation’s privacy protection clauses, tests for issuing warrants, oversight arrangements and information sharing provisions between agencies, for a start.

Instead of law enforcement agencies being forced to request multiple different types of interception warrants, the legislation would be modified to allow authorities to request a new more comprehensive centralised type of warrant with multiple powers. The interception regime — which allows authorities to request Internet service providers and telcos to intercept the communications of their customers — would be extended to some types of service providers not currently covered by the legislation.

In a statement issued this afternoon, Attorney-General Nicola Roxon said that the “potential” reforms would be examined by the Parliamentary Joint Committee on Intelligence and Security through public hearings, noting that this was “the beginning of the process”, and that the Government was seeking “diverse views” before determining which legislative reforms it would pursue.

“We must stay one step ahead of terrorists and organised criminals who threaten our national security,” Roxon said. “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.”

Greens reject the package
However, the Government has already come under attack for promulgating the reforms from the Greens, which views many of the proposed changes as being inappropriate. Australian Greens spokesperson for communications Senator Scott Ludlam today warned against further extending what he said was the “the loosely defined and already over-reaching online surveillance powers” of Australia’s intelligence agencies.

“Australians are already under a phenomenal amount of government surveillance. Nearly a quarter of a million telecommunications data warrants were granted in 2010-11 according to the annual Telecommunications (Interception and Access) Act report. This includes detailed locational data logged by every smartphone, every minute of the day.”

Ludlam highlighted the fact that the Australian public only knew about the data retention scheme plans ahead of time because of a “courageous” leak.

“That whistleblower understood that giving data retention powers to law enforcement and intelligence agencies undermines the very rights and liberties they are ostensibly empowered to protect,” Ludlam said. “Data retention as envisaged by this government will entrench enormous databases that can be mined for precise patterns of our movements, purchases, interests, friends and conversations. This interception, copying, recording and disclosure of our data is a means to retroactively police the whole population.”

Ludlam said the Greens welcomed a public consultation on the proposed changes, but added that the Attorney-General’s Department was “notorious” for “cheerfully ignoring” the advice of experts, interest groups and the general public when it came to consultations. “This looks like an ambit claim for surveillance overkill, but nevertheless, the Australian Greens will work closely with legal and privacy experts as well as ISPs and concerned citizens to turn back this unwarranted invasion of Australians’ online privacy,” said Ludlam.

opinion/analysis
Firstly, let me note that there is a lot going on here, with most of it below the surface. It is, perhaps, important to start with summarising what we don’t know, before going through what we do. This is not an uncommon approach to dealing with the Federal Attorney-General’s Department.

What we don’t know at the moment with respect to this package of reforms is virtually any of the detail regarding them. I, and I believe a number of other journalists, have today seen a broad-brush overview document which contains a few pages of high-level themes which will be discussed by the Parliamentary Joint Committee on Intelligence and Security. However, at the moment the media and thus the Australian public have no real idea what the legislative substance of the Attorney-General’s proposals looks like. This situation, will, of course, need to eventually be rectified, as those legislative changes will need to be public to go through Parliament.

However, what we also don’t know is precisely when that legislation will be made available. Will it be publicly discussed by the Parliamentary Joint Committee? Or will that committee only make available the high-level themes which the Attorney-General’s Department is interested in talking about, with legislation to come later on, after the public discussions? That’s unclear at the moment.

We also don’t know where this entire process has had its genesis.

It has been clear for several years that the Attorney-General’s Department has been working on data retention proposals. But today’s release by Roxon details a whole raft of other stuff. New types of comprehensive warrants, the power to access people’s computers (even unrelated computers, on the way to target computers), protection for ASIO officers, new charges for people who won’t follow orders and decrypt things for the Government … there’s a stack in here, and it’s all new.

We don’t know how long AGD has been working on this stuff, and we don’t know who else — which agencies, private sector bodies or even foreign governments — have had a say in it so far. This massive amount of work has just appeared out of thin air and received the stamp of approval of an Attorney-General who has only been in the chair for a few months. Creepy.

What we do know is that Scott Ludlam now has a mammoth amount of work ahead of him to try and find some of this stuff out before Australia’s civil liberties get tossed out with the garbage. Ludlam, the Greens Communications Spokesperson and resident Gibson-esque conspiracy theorist (and, it appears, with good reason), is one of the only figures within the Federal Parliament who is concerned about the erosion of civil liberties through increased government surveillance. Not many voices will be raised in public about this huge package of reforms which Roxon has rubber-stamped; and Ludlam’s will be one of the only ones with parliamentary privilege.

Unfortunately, Ludlam isn’t even on the Committee which will examine the package (in fact, no Green is), but hopefully that can be rectified before its examination of the situation begins. The Greens should have enough parliamentary power to wangle that. If that fails, probably the only other hope for some decent oversight of this package is the presence of independent Andrew Wilkie on the committee. Bear in mind, in addition, that there is no guarantee that this legislation will have problems making its way through Parliament, as the Opposition has been very quiet on these issues, and sometimes sides with the Government on issues of law enforcement.

Ludlam isn’t the only one who has been investigating the issue of data retention over the past year. Delimiter filed a Freedom of Information request on the subject with the Attorney-General’s Department in late January this year. Ever since, we’ve been wrangling with the department on the terms, to try and force it to give us some useful information on just what it’s up to in the area. I’ll have an update on that situation hopefully next week.

In the meantime, the weekend might perhaps be a good time for those who have not yet gotten involved in this struggle to curb law enforcement powers in the digital age to ruminate on the famous quote by Benjamin Franklin: “Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety.”

Image credit: Mateusz Stachowski, royalty free

ACCC approves FOXTEL and Austar merger

Chillibreeze — Tue, 10 Apr 2012 23:37:44 +0000

news The Australian Competition and Consumer Commission (ACCC) has announced it will not oppose the proposed acquisition of AUSTAR by FOXTEL, greenlighting the multi-billion dollar merger of the two pay TV giants and paving the way for Australia’s digital TV sphere to be re-shaped.

In a media release issued yesterday, the ACCC announced that to aid with its approval, it would accept court-enforceable undertakings from FOXTEL, which will prevent FOXTEL from acquisition of exclusive Internet Protocol Television (IPTV) rights for popular programs and movie content.

ACCC had earlier announced that it had initiated a consultation on a proposed undertaking by pay TV giant FOXTEL regarding its proposed $1.9 billion acquisition of Austar, a major pay TV company. Following extensive market feedback and discussions with FOXTEL, the non-exclusivity provisions of the draft undertaking were broadened to address the likely harm to competition arising as a result of the acquisition.

The undertaking is for 8 years and includes more than 60 linear channels supplied by independent content suppliers, internationally broadcast channels including those currently not carried by FOXTEL, movie linear channels, Subscription Video on Demand (SVOD) rights to current/past seasons of television programs and SVOD rights to movies. The merger highlights include:

Prohibits FOXTEL from acquiring exclusive rights for movies delivered on a Transactional Video on Demand (TVOD) basis.
Prohibits FOXTEL from acquiring exclusive mobile rights for content where rights are sought by competitors to combine with IPTV rights.
Prohibits FOXTEL from acquiring exclusive SVOD rights for a broad range of television programs and movie content, including Nickelodeon and National Geographic channels, and companion mobile rights to relevant IPTV content.
Aims to lower barriers by requiring FOXTEL to provide necessary signal access to linear channels distributed by independent content suppliers.
Extends FOXTEL’s Special Access Undertaking which makes it possible for content suppliers to gain access to more than 2.2 million FOXTEL and Austar subscribers.
Does not prevent FOXTEL from acquiring exclusive rights in relation to individual sports, which is considered independent of the acquisition.

The main areas of concern with the proposed acquisition of the two major pay TV giants in Australia were in the national market for retail supply of subscription television services, especially related to IPTV, and in the regional markets for fixed broadband and telephony. The merger would have meant that Telstra, a major shareholder of FOXTEL, would be a superior player in fixed voice, broadband and IPTV services.

ACCC chairman Rod Sims said “By reducing content exclusivity, the undertakings will lower barriers to entry and promote new and effective competition in metropolitan and regional telecommunications and subscription television markets.” He added that the undertaking offered by FOXTEL is unlikely to substantially reduce competition.

As telecommunication networks develop, the ACCC expects that the undertaking will create more opportunities for competitors to develop differentiated and consumer-friendly subscription television offerings combining IPTV services with other telecommunication services. The undertaking however, does not prevent acquisition of exclusive rights to individual sports.

“The proposed undertaking has been offered by FOXTEL to address the harm to competition which is likely to arise as a result of the proposed acquisition,” Sims said. “However it is not intended to resolve competition or structural issues that may already exist in the relevant markets and are unrelated to the proposed acquisition.”

Sims added that the ACCC will remain conscious in regard to competition concerns and misuse of market power, and whether there is a need to advocate for regulatory intervention in existing and emerging media markets.

The move was immediately welcomed by FOXTEL part-owner Telstra. Rick Ellis, Group Managing Director Telstra Digital Media, said the decision was a win for consumers:

“The merger between FOXTEL and AUSTAR will create a pay TV company that will be able to provide innovative content for customers across Australia,” he said. “It will also enable Telstra to expand its FOXTEL on T-Box offering into some AUSTAR areas over time, enabling regional Australians in those areas to enjoy the same high quality IPTV services as those who live in metropolitan areas. Telstra will provide further detail on its plans to expand the availability of FOXTEL on T-Box at a later date.”

However, not everyone is happy about the ACCC’s decision on the matter.

Greens communications spokesperson Senator Scott Ludlam said the ACCC should have delayed its decision in light of the allegations of commercial piracy levelled by the Financial Review newspaper against News Corp subsidiary NDS. Foxtel is part-owned by News.

“The competition impacts of the takeover were troubling enough, and were made infinitely more troubling by the piracy allegations,” said Ludlam in a statement. “This takeover will exacerbate the one-way trend towards monopoly in Australia’s pay-TV sector, and the ACCC should have put any decision on hold until these serious allegations against News Corp entities are resolved.”

“I wrote to the ACCC on March 28th to request a hold on the decision and asked that the ACCC review all relevant material pertaining to the allegations of commercial piracy by News Corp against rival subscription television vendors before coming to a conclusion on the proposed $1.9billion takeover. On that same day it was revealed that the Australian Federal Police are assisting
UK police investigating the News Corporation phone hacking scandal. Regardless of the court-enforceable undertakings from FOXTEL designed to limit the acquisition’s negative impacts on competition, the gravity of the pay-TV piracy allegations should have put the decision on hold until they are resolved.”

In addition, Telstra’s telco rivals Optus and iiNet have also publicly repeated their concerns about the merger.

opinion/analysis
To be honest, as a technology industry commentator the merger of FOXTEL and AUSTAR doesn’t bother me too much. In the long-term, content is becoming disaggregated from the platforms which it was previously bound to, and I don’t expect the merger of two pay TV rivals without much of a common geographical footprint to tie up the market too much. The emergence of Apple’s iTunes platform as a video distribution system, coupled with IPTV initiatives delivered over broadband (especially as the National Broadband Network is rolled out) should solve much of these market competition issues over the next few years. God knows, most Australians of my generation (Generation Y) don’t really care about FOXTEL at all. Very few of my friends are subscribers.

Image credit: MJimages, royalty free. Opinion/analysis by Renai LeMay

NBN: Australia can’t trust Labor, says Turnbull

Navina Anand, Chillibreeze — Sun, 01 Apr 2012 23:57:37 +0000

news Shadow Communications Minister Malcolm Turnbull has issued a scorching statement on Labor’s track record in building the National Broadband Network, declaring that the three-year NBN rollout plan delivered last week was “a duplicitous and ham-fisted attempt” to conceal its failure to deliver.

On Thursday last week, Chief Executive Officer of NBN Co, Mike Quigley, in the presence of Prime Minister Julia Gillard, Communications Minister Stephen Conroy and Infrastructure and Transport Minister Anthony Albanese, launched the first major stage of NBN Co’s roll-out plans at a press conference in Sydney. The plan disclosed in detail the deployment of fibre and wireless broadband infrastructure to 3.5 million premises in 1500 communities in every state and territory in Australia, by 2015.

In reaction, Turnbull issued a statement claiming that for the past five years Labor’s message on broadband had been ‘trust us’. Yet, in that time, hardly 5000 Australian households had actually received better broadband, he said.

Pointing out that the NBN Co was up to a year behind its targets according to its own 2010 plans, Turnbull’s contention was that the plan did not contain a forecast either of how many households and businesses would actually be able to connect to the NBN fibre by 2015 or, would actually be connected.

Turnbull set forth statistics on NBN Co’s performance thus far, saying that between June 30th, 2011, and March 31st, 2012, the company’s fibre roll-out had reached only 657 additional premises, which worked out to just over 3 per working day. To reach the June 30th, 2012 roll-out targets in its current Corporate Plan, NBN Co would have to connect a further 137,000 premises in the next three months, that is, about 2090 per working day. Likewise, on March 31st, there would be 18,900 premises which would actually connect to the NBN fibre, but work would be expected to commence on a further 249,600 premises by the same date. Applying the same passed-to-commence ratio, only 250,000 premises would actually be connected to the network by 2015.

On the NBN’s progress, therefore, Turnbull said that the three-year roll-out plan announced by NBN Co and the Government was a “duplicitous and ham-fisted attempt” to conceal its failure of achieving its targeted connectivity.

However, not everyone was so negative about the NBN, in reactions which came last week to the three year rollout plan announcement. In a statement, Greens Communications Spokesperson Scott Ludlam asked the Coalition ‘to abandon their dogmatic vow on how to “demolish” the NBN.’

“The Coalition clings to their half-baked scheme to basically halt the Network during construction and try to fill in the gaps with tin cans and string, but there comes a time when even the most fervent ideologue must face the facts,” he said. “Mr Abbott needs to recognise that the NBN is here to stay and the Australian people want it that way.”

“The officials and the workers who built this country’s copper network a century ago did a grand service to their nation, but that copper network can’t deliver the fast broadband the modern economy demands. Without this investment in our infrastructure, Australia will struggle to match world’s best standard for telecommunications.”

Ludlam pointed out that some federal Liberal MPs had clamoured to get the NBN in their electorates first, and Liberal state governments were beginning to push for priority. “We have a situation where MPs state and federal are paying attention to the local reality and want the NBN as soon as possible, while the Coalition’s top brass clings to their ideological hatred of public enterprise.”

National broadband provider iiNet also expressed support for the NBN’s three-year roll-out plan. Michael Malone, CEO, iiNet said: “We’ve always been strong supporters of the NBN because it brings faster, more reliable Internet to all Australians, no matter where they live.” About the large number of households that would get access to iiNet’s service, he remarked that the roll-out would provide an opportunity for iiNet to focus its attention on customers in areas previously disadvantaged by poor Internet coverage and lack of competition.

Image credit: Office of Malcolm Turnbull

Please explain Huawei ban, Greens tell Labor

Renai LeMay — Mon, 26 Mar 2012 03:33:22 +0000

news The Greens have called on the Labor Federal Government to publicly disclose its reasons and associated evidence for blocking Chinese networking giant Huawei from tendering for National Broadband Network contracts, pointing out that the company has not been accused of breaking any laws.

The news of Huawei’s ban broke over the weekend, representing the latest in a long-running series of attacks on the Chinese company by various organisations in Australia. Throughout the past several years, a number of media outlets and other groups have attempted to link Huawei as a private corporate entity with Chinese political and military interests, citing such claimed links as evidence for why the company may not be suitable as a supplier of telecommunications supplier to major government or private sector projects.

However, throughout that period, Huawei has strongly denied that any undue influence exists on its commercial operations. In addition, no technical proof of any so-called ‘backdoors’ in Huawei’s infrastructure has ever been presented in public. The company continues to be a key supplier of networking equipment to major Australian telcos such as Optus and Vodafone, and the company has also conducted trials of its equipment with Telstra. Other Australian telcos it works with include AAPT, vividwireless, Primus and TPG.

In a statement issued this afternoon, Greens Communications Spokesperson Scott Ludlam said the Government was right to be cautious on the issue, given the importance of the NBN to Australia, “but needs to make the case for the ban public”.

“Huawei has operated in Australia since 2004, but this is no ordinary tender; it is the most significant infrastructure project of our generation. It will be a crucial part of communications in Australia, with a vital role to play in commerce, education, the public health system, and all levels of civil administration,” said Ludlam. “The Government is prudent do all it can to protect the integrity of the NBN. While it is unlikely ASIO would issue a security warning for trivial reasons under these circumstances, the Government should explain the decision.”

“As Huawei has not been accused of breaking any Australian laws, the Government’s apparent intervention in NBN Co’s tendering processes raises questions that need answering. If the Government has evidence that there is a dangerously close relationship between Huawei and Beijing’s political and military interests – it should make that information public.”

Ludlam said it was unlikely the decision would have any significant diplomatic impact on Chinese-Australian relations, and framed alleged Chinese cyber-espionage efforts in general in the context of the cut and thrust of international affairs.

“Huawei is led by a former People’s Liberation Army engineer, and the Chinese government has been accused of intercepting confidential information in cyberspace by the United States Office of the National Counterintelligence Executive,” Ludlam said. “China is not alone in this regard; geo-strategically, it stands to reason the governments of nation states will do what they can to learn all they can about other nation states.”

A number of other major networking hardware suppliers from diverse international countries, such as Nokia Siemens Networks (Finland), Ericsson (Sweden), Cisco (the United States), Alcatel-Lucent (France) and others have won major contracts with NBN Co over the past several years. However, none of those firms have had their foreign interests questioned in public by NBN Co or the Government.

Huawei is also gradually becoming a major consumer electronics brand in Australia (as it is in China), and has retail partnerships with giant local firms such as Woolworths. The company is believed to have approximately 600 staff based in Australia.

Image credit: David Howe, Creative Commons Attribution 3.0 Unported licence

Pirate Party slams extreme govt secrecy

Asha Jacob, Chillibreeze — Thu, 22 Mar 2012 23:06:02 +0000

news Pirate Party Australia has condemned the actions of Attorney-General Nicola Roxon, whose department has refused to release documents regarding closed door discussions on the issue of Internet copyright infringement under Freedom of Information laws.

Pirate Party Australia is a group of like-minded individuals with its origins in similar parties in Europe who advocate the citizens’ right to freedom of information and culture, civil and digital liberties, and governmental transparency. In Europe the parties have been successful in the electoral process.

In a media release issued this week, the Party stated that Government continual secrecy and outright refusal of public sector institutions to release documents was a serious threat to Australian democracy, and must be curbed immediately. It reiterated that all government negotiations – whether with industry or foreign governments – must be transparent, accountable and available to the Australian public. The media release went on to say that when governments hide negotiations that take place with vested interests, from the public, it is likely that these vested interests would get what they want, regardless of the wishes of the people the government is meant to serve.

This was made amply clear, according to the party, this month when Roxon’s department withheld details of the fourth closed-door meeting between it and industry regarding Internet content piracy. The Federal Government had late last year similarly refused to reveal much information about another secret industry meeting (in total there have been four over the past six months) held last year to tackle the issue of Internet piracy.

The Attorney-General’s Department provided a series of five documents in response to a request for information about this meeting to be released under Freedom of Information (FOI) laws. The documents included 14 pages of notes taken by a departmental staffer at the event and four other pages of notes taken by a senior staffer from Communications Minister Stephen Conroy’s department. The information contained in these documents was clearly redacted. Delimiter is appealing the decision to block the release of the documents.

In a related development, the Australian Greens Communications Spokesperson Scott Ludlam filed an order in the Senate seeking the Government’s disclosure of details of the most recent meeting on Internet piracy which the Attorney-General’s Department has blocked from being released under FOI laws. Ludlam stated that it was industry “intermediaries” who were discussing the issue of anti-piracy with the Attorney-General’s Department and they have been asked to come up with something that was “not too offensive” for their corporate interests.

In this context, the Pirate Party also drew attention to the hazy Anti-Counterfeiting Trade Agreement (ACTA) and Trans-Pacific Partnership Agreement (TPPA) negotiations, where only leaked documents were available for public inspection and no official drafts were made public.

The Party feels that the recent change of Attorney-General has not improved the situation. Roxon succeeded Robert McClelland, who was removed from the position in a cabinet reshuffle late last year. According to the party, the new Attorney-General continues to follow the same pattern of her predecessor in maintaining government secrecy and what the Party calls the ‘top secret’ stamp to hide incompetence and dishonesty, setting a dangerous precedent for further misuse.

Brendan Molloy, Pirate Party Secretary opines: “The way the Attorney-General’s department is treating Australians is an affront to democracy. Hosting secret industry talks and withholding documents that are decades old are not the hallmark of a fair, representative and transparent democracy.” He called upon the Attorney-General to change her course and release the requested information in the public interest.

The Pirate Party also slammed Roxon for refusing to release documents regarding mass starvation in East Timor, despite the fact that the documents are up to 37 years old. According to the Party, the East Timor starvation documents could “reveal Australian complicity in concealing the mass starvation of 100,000 East Timorese.” The Party accused the Department of Foreign Affairs and Trade of influencing Roxon’s refusal to release these documents into the public domain, claiming that it would harm national interest. Pirate Party believes that any adverse impact of these documents on ties between Australia and Indonesia would be minimal; a fact endorsed by former Army intelligence officer Clinton Fernandes.

opinion/analysis
While the Pirate Party’s views are a little extreme at times, in this case it’s hard to argue that they’re not completely mainstream. I believe most Australians are in favour of as much government transparency as possible. The Government, after all, is ultimately responsible to residents of Australia. Transparency is essential to the process of democracy. If the Government decides not to release important documents — particularly historical ones — it had better have a pretty good reason why.

Image credits: Paul Brunskill, royalty free. Opinion/analysis by Renai LeMay

Senate order: Greens demand secret piracy docs

Renai LeMay — Tue, 20 Mar 2012 23:19:26 +0000

news The Australian Greens have filed a motion in the Senate requesting that the Government release documents regarding its closed door meetings on Internet piracy which the Attorney-General’s Department has blocked from being released under Freedom of Information laws.

The Attorney-General’s Department stated in its response to a FoI request that it “does not hold” a list of the attendees who actually attended the February meeting. Furthermore, the department censored the names of the individuals invited to attend the meeting. It also completely redacted a document consisting of the agenda of the meeting, which had been distributed to those invited to attend. Delimiter is appealing portions of the blocked FoI request.

This morning, Greens Communications Spokesperson Scott Ludlam filed an order in the Senate that the Government disclose details of the most recent meeting. “The Government refuses to reveal almost any information about the attendees, the substance or the outcomes of the meeting,” he said in a separate statement. “A Freedom of Information request from a journalist looks like it’s been met with maximum resistance.”

“Major ISPs and representatives of the film, television and music industries have held a series of meetings with the Attorney-General’s Department to discuss an industry fix to the issue of online copyright infringement. This would be fine if everyone was at the table. But for some reason, former Attorney General McClelland decided to lock out the people that actually matter – the people who produce, and the people who purchase and use, the content.

Previous documents released under FoI laws have shown that the Attorney-General’s Department actively blocked representatives of consumer groups from attending the meetings.
“Even with the best will in the world, simply inviting the intermediaries to come up with something that suits their collective commercial interests is hardly an encouraging recipe for looking after the public interest,” said Ludlam. “I acknowledge that ISPs have done their best to prevent predatory behaviour by rights holders in the past, but there’s no substitute for a diversity of views in a forum such as this.”

“New Attorney General Roxon has inherited this situation from the former AG, and I call on her to table this material in an act of good faith and open the doors of these meetings so that the public can get a sense of what’s being cooked up.”

Senator Ludlam’s order for the production of documents asks that lists of invitees and attendees, notes and minutes arising from the meeting, any documentation issued to attendees, departmental correspondence regarding the meeting and any documents relating to future meetings be tabled in the Senate, on Thursday 22 March.

The sole organisation to publicly reveal any information about the talks is iiNet, which has attended the talks. Yesterday, the ISP’s regulatory chief Steve Dalby posted comments on Delimiter stating that there was a “massive” gap in the talks between what the ISP and content industries wanted. “Most, if not all of the discussions over the years have been conducted between the rights holders and the ISPs,” he said. “These have been fruitless. The rights holders want all the benefits of remedial action, but want the ISPs to foot the bill. ISPs don’t want to pay to protect the rights of third parties. The gap between the parties is considerable and unlikely to close.”

“Government probably wishes the whole thing would go away, but given that it hasn’t, they have reluctantly joined in the conversation, to see if a commercial solution could be encouraged.”

It’s not the first time Ludlam has criticised the Government over the issue. In late January the Senator said the various parties had been “locked in a room by a former Attorney-General and told to sort something out” — asked to resolve the question of how content creators could make money in a world where file sharing through platforms such as BitTorrent was popular.

“What I find the most offensive about that, is that they locked the people out of the room that actually matter,” Ludlam said at the time. “All of the writers, the creative artists, the performance people, they’re not in there. The rights holders are in there. The end users, the consumers … us, are locked out of the room as well.” Ludlam said it was the “intermediaries” who were discussing the issue under the auspices of the Attorney-General’s Department, who had been told to come up with something that was “not too offensive” for their corporate interests. “They’ve locked out the producers and consumers. The model which will be introduced in Australia, when we get to hear about it, will probably be stuffed and offensive,” he added.

Delimiter is seeking to contact the office of the Attorney-General for a response to Greens’ Senate move.

Update: Delimiter has received news from Scott Ludlam’s office that the vote on the motion for the production of documents has been held over until tomorrow (Thursday).

Image credit: David Howe, Creative Commons Attribution 3.0 Unported licence