If Nicola Roxon doesn’t believe in
her own policy, why should we?


This article is by Bruce Arnold, a lecturer in Law at the University of Canberra. It was first published on The Conversation and is re-published here with permission.

analysis Earlier this month the Hon Nicola Roxon asked the Parliamentary Joint Committee on Intelligence and Security (PJCIS) to conduct an inquiry into the Government’s proposals for a major revamp of Australia’s national security regime, including the long-term retention of information about SMS, voice calls, web searches and internet downloads.

The terms of reference and accompanying discussion paper for the inquiry featured stronger powers for the Australian Security Intelligence Agency (ASIO) and a “one step forward, two steps backwards” proposal involving fewer government bodies directly accessing private information but more being able to share. The proposals also featured mandatory retention by telecommunication providers – and presumably internet hosts and social network services such as Facebook – of “traffic” data for a period of two years.

The data would identify that communication had taken place (for example that an SMS had been sent from a specific number to another number at a particular time and place or that an ISP customer had visited a specific site) but would not include the content of the communication such as a transcript of what was said during a conversation. Building a “mosaic” does, however, offer a picture of relationships and activities and it is accordingly sought by bodies that range from police to the ATO and Centrelink.

The past decade has seen a succession of proposals for business to retain all traffic data for a period of two, five or seven years in a form that is readily searchable by a range of law enforcement and national security agencies. One of the more absurdist proposals of the late 1990s saw the Australian Federal Police request weekly or monthly printouts of all traffic. This was rebuffed by leading telcos with a simple question: where did the AFP propose to park the semi-trailers that would be needed to deliver the tonnes of paper each month? Traffic data retention has not found favour with several parliamentary committees and has been damned by a range of legal and industry bodies. Unfortunately, like the undead, it persists in reappearing when governments want to seem strong.

Under the heading “Roxon doubts over security plans to store web history” the Attorney-General was quoted on Friday as stating that “the case has yet to be made” for retention.

Roxon reportedly acknowledged the financial and privacy costs of such a scheme, commenting that she had some sympathy for the view of national security agencies but is “not yet convinced that the cost and the return – the cost both to industry and the [civil liberties] cost to individuals – that we’ve made the case for what it is that people use in a way that benefits our national security”.

If the Attorney-General is not persuaded of the merits of her proposal, at a time when she has recently claimed to be strengthening the national Privacy Act, why should we support a major erosion of the Australian privacy regime?

If she does not regard the proposal as convincing, why was the time allowed for public comments so short? Speed-dating may be fashionable but speed-policy making is abhorrent in a liberal democratic state. It is particularly abhorrent given the lack of rigour in the discussion paper, replete with statistics that bear no relationship whatsoever to the proposals. (Recitation of the number of homicides and assaults is irrelevant, given that no Australians have been clubbed to death with mobile phones or USB sticks.)

One answer may come from comments by retention-advocate Neil Gaughan of the Australian Federal Police High Tech Crime Centre. He is reported as saying that “if we don’t have a data retention regime in place we will not be able to commence an investigation in the first place” and that opposition to retention in Germany has left the German federal police agency a laughing stock. That claim appears to be inconsistent with the fact that German law enforcement agencies are still obtaining warrants, prosecuting alleged offenders and securing convictions. (Laughter is more likely to come from misbehaviour by keystone spooks.)

We should not confuse bureaucratic convenience with a fundamental need or allow the laudable enthusiasm of law enforcement personnel to override concerns regarding civil liberties and regulatory burdens. Several years ago the Law Institute of Victoria commented that neither government nor community would tolerate proposals to place telephone intercepts on all phone lines in Australia and record all conversations, or to open all mail, in case such information may be of use to law enforcement agencies. Such proposals would be unacceptable in a democratic society. There is no demonstrable reason why internet communications should be treated differently to other communications.

Contrary to utopians such as Julian Assange, there is a place for secrecy in national security. But we need to be able to trust the spooks and police. Proposals that are vague, extraordinary and unsubstantiated do not induce trust. Neither does an Attorney-General who confuses kite-flying with an own goal.

Bruce Arnold has no affiliations with telcos or other enterprises potentially affected by the proposed data retention regime. Submissions about data retention have been cited by past parliamentary inquiries. Mr Arnold is general editor of Privacy Law Bulletin, the national privacy and confidentiality law practitioner journal

This article was originally published at The Conversation. Read the original article. Image credit: Timeshift9, Creative Commons

The Conversation


  1. The thing I find “interesting” about this data retention proposal is that Conroy has previous said when arguing for his internet filter that the internet is not a magical place and no different to television & movies. So by that logic shouldn’t everything we watch on TV and listen to on the radio also be logged? Actually come to think of it why are we not “logged” when we visit shops, restaurants, houses etc? Really if we want to be consistent here that information should be retained and if you think about it would actually be more useful to catch criminals. No, that would be ridiculous, so why then does the government believe the internet is a magical place where information should be retained for 2 years then?

    • @HC

      “Actually come to think of it why are we not “logged” when we visit shops, restaurants, houses etc?”

      Actually, unless you use cash, you are. And in fact, even if you’re not, most shops/restaurants have CCTV as do most street corners. And face recognition is MILES ahead of just 5 years ago, to the point that even with low quality CCTV, faces can be matched with some high degree of certainty.

      We haven’t seen the breakdown of society yet, have we? ;)

      I just feel people are overreacting- yes, we need to be careful and prudent in balancing security with privacy. That doesn’t mean we should automatically dismiss all security changes by default!

      • “Actually, unless you use cash, you are.”

        That might be true but you have clearly missed the point. People currently have the freedom visit people, browse shops etc and they dont have to identify themsleves. If the real world were to mirror the internet data retention proposal this is how it would be REGARDLESS if you made a purchase or not. Do you think every time you visit a friends house that information should be logged and the contents of your conversations recorded? No that would be stupid.

        “We haven’t seen the breakdown of society yet, have we? ;)”

        That’s right so please explain how we will have a “breakdown of society” if we don’t implement this data retention.

        • @HC

          “Do you think every time you visit a friends house that information should be logged and the contents of your conversations recorded? No that would be stupid.”

          Ever met a teenager, or anyone who uses Facebook?……How many times do we see this data appear in public on Facebook, Foursquare, Instagram, CheckedIn?….etc etc…..

          We are changing the way we live. I don’t do those things, I’m not forced to, so I don’t. But more and more people do and it’s an ordinary way of life. They do it ON PURPOSE.

          My details won’t be made public by data retention- the fact I sent an email to Bob Jones will be made available to law enforcement only……yay. As long as they don’t know what’s in them without cause (ie required warrant to actually view the contents) they can know I sent whatever to whoever- except they can’t, cause they need a warrant to even view THAT.

          I don’t care. Why would I? I use this argument and many people are always berating of it, but, if I’m not doing anything wrong, why would I care that law enforcement knows I’ve sent an email to Martha Bristol, 74 Ennings Lane, Bibblebop? For a start they’re not allowed to look that information up without a warrant. And can they actually do anything with that? No, they don’t have the power unless they can prove beforehand I’ve done something wrong.

          BUT if I WAS doing something wrong and they HAD proved I was or that there was a very high likelihood I had (court order warrant) then they would have the ability to track my patterns and movements, which, if you’re plotting a drug drop would be extremely useful. Especially as it might stop my (theoretical) teenage daughter from taking those drugs and ending up dead in a ditch.

          I’m not, nor would I ever condone, blanket allowance of law enforcement to know and see everything we do 24/7….but that’s NOT what these laws allow. Hell, to even view the fact that I’ve BEEN to a website or SENT and email, they have to have a warrant. That won’t change. The terms for those warrants might and that has to be looked at VERY carefully, but as long as a warrant is still required…..what’s the issue??

          • Take it a step further. It doesnt need to be YOU dropping the breadcrumbs. A friend,, a sibling, a niece/nephew/other, checking in on Facebook to a location, often adds a bunch of people they are with. If you’re there, and have a facebook profile, probably you as well.

            You might also be tagged in a photo, that can be cross referenced with others in the same photo at the same location. Data matching is a devious tool if you want to use it that way…

            So YOU might not log your location, but theres a chance others will for the same reasons you state – its the modern way of doing things.

  2. “If the Attorney-General is not persuaded of the merits of her proposal, at a time when she has recently claimed to be strengthening the national Privacy Act, why should we support a major erosion of the Australian privacy regime?”

    I’m sorry, but I’m getting a little sick of saying this. The Attorney-General is NOT automatically proposing all measures in this proposal be adopted. She has put it to committee and it is the committees JOB to determine whether the measures are prudent or overzealous.

    I understand people’s concerns about this and Nicola Roxon has expressed concerns too- that is why the proposals are before committee. To simply say “If she doesn’t even want them, why should we?” is disingenuous, misleading and assuming all the proposals will be adopted. I can probably list on one hand the measures adopted in full by government after committee discussions. Look at the Henry review. or at Ross Gaunet and climate review.

    These measures are being debated and everyone has their say. They extended the deadline, albeit not enough IMO and they are serious about getting discussion on this. Why is everybody jumping to the foregone conclusion they wil immediately adopt all measures regardless?? Does ASIO control the government???

  3. Police seem to like the Sir Edmund Hillary justification: “Because it’s there”.

    Or the George W Bush excuse “We’ve made it a better place”.

    Neither are convincing when it comes to my data. And no, before some idiotic police chief states it, I’m not a criminal and the proposed legislation is still bad for me.

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