Indefinite data retention “appalling”, say critics


news Critics of Federal Government’s proposed data retention and surveillance scheme have labelled suggestions by police that Australians’ telecommunications data could be retained indefinitely as “appalling”, and pointed out that there is very little likelihood of political support for such a scheme.

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.

Last week, representatives of federal and state police forces reportedly told a parliamentary committee into the proposed reforms that they would actually prefer if ISPs were forced to retain data on all Australians’ telecommunications records indefinitely — instead of for a mere two year period, as is currently proposed. In a statement issued last week, the Pirate Party Australia heavily criticised the idea.

“It appears that the police commissioners are trying to portray their two-year retention proposal as a reluctant compromise, yet any blanket warrantless arbitrary retention of the communication data of the entire population is a totally unnacceptable risk to civil liberties and fundamental privacy rights,” said Mozart Olbrycht-Palmer, Deputy Secretary of Pirate Party Australia.
“While arguing about ‘how out of date interception laws are,’ they seemed oblivious to the fact that an intrusive scheme of warrantless retention of data was already passed under the Cybercrime Legislation Amendment Bill. These amendments provide targeted retention on request, rather than automatic blanket retention of everyone’s data.”

“We object to any widescale surveillance systems, and oppose mandatory data retention for all Internet connections, regardless of the retention period. Judicial oversight and explicit, limited warrants are necessary safeguards that the National Security Inquiry discussion paper proposes to eliminate. It appears that the police commissioners are essentially saying ‘trust us’ while attempting to do away with judicial oversight of their actions, railing agianst the ‘burdensome’ nature of warrants – an element key to protecting society from abuse of powers.”

The Pirate Party said it was alarmed by the cavalier attitude displayed by the police agencies as to the “burdensome” aspect of warrants and the lack of regard to ways such powers could be abused and compromise privacy.

“The constant assertion that ‘only metadata will be stored’ is at best a disengenous attempt to minimise the very real personal content present in such data. At worst it shows a reckless lack of understanding of what this information can actually reveal about people’s personal lives,” Olbrycht-Palmer continued.

“We categorically reject the idea of large scale monitoring of all Australians. It is telling that countries with past histories of overbearing surveillance have rejected such schemes as too extreme, yet a recent article in the Sydney Morning Herald reveals that Australia is now a world leader in surveillance. Australia has been lucky to have experienced a history of democratic freedom, perhaps we have become too complacent to the dangers of encroaching upon our rights and civil liberties.”

Separately, in the same hearings last week Australia’s financial regulator, the Australian Securities and Investment Commission, called for the content of online communications – not just the metadata associated with the communications – to be retained as part of the Federal Government’s data retention and Internet surveillance package.

Speaking on the ABC’s The Drum television show last week, Chris Berg, research fellow with free market thinktank the Institute of Public Affairs (which opposed the reforms), stated that both new lines pushed by ASIC and the police representatives were “obviously not going to happen”, with Berg not believing there was currently any serious case being made within the Government for either indefinite data retention or data beyond metadata to be retained.

However, he did note that he believed the discussion in this area was “incredibly important”, as he pointed out that the Federal Government had been careful to officially push the current package of data retention reforms as being necessary to stop only extremely serious crimes such as terrorism or the dissemination of child pornography. These areas are not covered by regulators such as ASIC, meaning the data retention powers would actually be used for less serious crimes.

In general, the Government’s data retention and surveillance package 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 new 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 into the reforms, 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 Institute of Public Affairs, a conservative and free market-focused think tank, wrote in its submission to the parliamentary inquiry on the matter that many of the proposals of the Government were “unnecessary and excessive. “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”. And one Liberal backbencher, Steve Ciobo, has described the new proposal as being akin to “Gestapo” tactics.

In addition, last week The Australian newspaper reported that about a dozen Coalition MPs had bitterly complained about the data retention proposals in a passionate party room meeting, with Opposition Leader Tony Abbott being urged to directly pressure the Government on the issue.

Federal Attorney-General Nicola Roxon and agencies such as the Australian Federal Police have attempted to justify the need for a data retention scheme by stating that the increasing use of the Internet by criminals has made traditional telecommunications interception powers less useful.

“The need to consider a data retention scheme has come about because of changes in technology that have affected the behaviour of criminal and national security suspects,” said Roxon several weeks ago. “Targets of interest now utilise the wide range of telecommunications services available to them to communicate, coordinate, manage and carry out their activities. The ability to lawfully access telecommunications data held by the telecommunications industry enables investigators to identify and build a picture of a suspect, provides vital leads of inquiry and creates evidence for alibis and prosecutions.”

I also don’t think there’s any appetite within the Federal Government for either indefinite data retention or for data beyond metadata to be kept. However, it’s not hard to see this kind of ‘scope creep’ being added on to the data retention and surveillance package as an addendum, say three or four years down the track, when the controversy has died down. That, in my opinion, is the real danger here. As Greens Senator and Communications Spokesperson Scott Ludlam has consistently pointed out, this legislation gets modified regularly already.


  1. The Attorney General nor the Law Enforcement Agencies have shown that the current legislation is deficient. They have also not shown that the changes in criminal behaviour which have nothing to do with technology is the problem they want to address.

    Why the data of more than 90% of the population who are not criminals should be retained under this scheme is yet to be explained.

    LEAs already have wide data retention and interception powers under existing legislation. One can only wonder whether they are becoming lazy and don’t want to have to show cause to the judiciary for a warrant.

  2. The hidden costs associated with storing this data will be enormous. No doubt there would also need to be duplicate backup options for this data as well in case the primary storage media is corrupted for some reason. A nice fine for the ISP will be in place for any inevitable failure.

    It doesn’t take a genius to work out who will cop the bill for these extra costs. Any projected saving in NBN plans will start to pale in comparison to the management fees associated with this aspect alone.

    You can also basically wipe out any new small startups from the market as customer number growth will have an exponential increase in backend costs. The funding for that expansion will be too restrictive.

    I have for a while believed we would most likely end up with a monopoly or duopoly ISP structure across the country. This just hammers another nail in that coffin for me.

    • iinet have already put the cost out there for ISPs as about $5 per month per customer

      That is a >10% cost increase from the vast majority of access plans, and totally unacceptable

      • And the industry guestimates the total cost @ 500-700 MILLION…

        I don’t usually cuss on public feedback but f#ck Roxon, f#ck the pro-authoritarian police organisations and f#ck the apologists who will let them get away with this crap.

  3. Iinet estimate that their monthly bill will jump by $5.

    Not only does the goverment want to put me under constant surveillance, but they want me to pay a monthly fee for the priviledge!

    No thank you.

    • The big Telco companies already charge law enforcement astronomical amounts of money annually for checks made with them. I could not see ISPs charging end users for this and would most likely pass on the costs to law enforcement like Optus, Telstra etc do.

  4. It is not just the surveillance _scheme_ and the internet censorship _scheme_ that are appalling.

    The _Gillard Government_ is appalling !!

    What kind of democratic government would even make these proposals ???

    Whether data is retained for 1 year, 2 years or forever is quite irrelevant. The vast majority of Australians are law abiding and should not be subject to surveillance at all.

    Data should not be collected or retained 1 second beyond the telco/ISP’s business need – unless law enforcement obtains a warrant on the basis of investigating a serious crime. Law enforcement already has that power under existing law.

    • The coalition has run a great ‘No’ campaign. If in doubt say ‘No’, if fence sitting say ‘No’. The only time they don’t say ‘No’ is when the coalition leadership can’t think of a way to even spin part of it into ‘No’. The closest they come to ‘Yes’ is just finding some other topic to say ‘No’ about instead.

      Liberals silently agreeing to data retention, bloody hell.

      Sticking feathers up your butt does not make you a chicken, nor a Liberal it seems.

      Dump it just on labour? Better off getting stuck into the Liberals so they at least say ‘No’.

    • This crap has been floating around since the Howard days. it is just that there has been public comment in the Gillard days, so pot, meet kettle, if you think this has anything to do with political parties

  5. Firstly, @OK. You’re complaining about the Gillard government. Good point. What has the opposition said in response to the proposal though? “…”. And then “….”. Sorry, but this is both major parties thinking that Australians need to be spied upon.

    More broadly, this whole idea makes as much sense as a law requiring that phone companies record every phone call that is made. Saying that “the law is falling behind because criminals are using new methods” doesn’t disguise the over-reach here. There has never been the power to bug everyone’s phone, watch everyone’s mail, listen to everyone’s conversations. This proposal is asking for that power, and there is absolutely no technological change that justifies it.

      • @OK

        That’s all very well, but their leader, nor even “inside sources” have even bothered to make a significant public statement about it. They are simply dodging the question. Even their own Comms minister is dodging the question….seems very odd to me if they opposed it outright….

        Before you support 6 months, you should be demanding that the law enforcement agencies need a warrant in order to get access to the retained information.

        They need a warrant to get anything more than metadata. I never said I supported the AFP’s proposal of ALL data, I said I supported the GOVERNMENT’S proposal to the inquiry, which was metadata.

        • You should be demanding that they need a warrant to access *metadata*.

          Without a warrant, 6 months retention *is* forever because they can just access it every 6 months and keep a copy forever themselves.

          • @Ok

            No, that would be a privacy breach. You can’t just make a copy of the metadata. NO ONE can just “make a copy” of ANY data like that.

          • Law enforcement can (under current rules) and I’ve seen no proposal from government or law enforcement that would apply *more* stringent conditions to this new mine of information.

          • @OK

            Once again, evidence? Afaik, they must delete the information after the case they are working on is complete- otherwise they are penalised heavily under breach of privacy. Cold cases may be the exception, but they are a minority of cases compared to day-to-day cases that come up.

          • >Afaik, they must delete the information after the case they are working on is complete-
            >otherwise they are penalised heavily under breach of privacy.

            “Chapter 4-Access to telecommunications data” deals with access to “metadata”, which is what the Data Retention proposal is about. As far as I can see there are ***no*** provisions whatsoever for the destruction of information that is obtained by virtue of those provisions. If you believe this to be incorrect, please mention the section.

            For intercepted telecommunications and for stored communications that are accessed (both of which require a warrant! and which are covered by other chapters of the Act) you are correct that there are some obligations to destroy information obtained by virtue of those provisions once no longer required.

          • @OK

            Alright then. So, that’s a reason to reject the proposals as they stand. Without a mandatory disposal process once it has become clear the person of interest is no longer of interest, there IS too much chance of improper use. However, that doesn’t mean it COULDNT ever nor SHOULDN’T ever be done.

            I’ve said all along, with the correct safeguards and right independent authorities looking after it, together with time frames of use, there is no reason these proposals of data retention couldn’t be enacted. It is not some apocalyptic end of the world. It is a discussion. Currently, the evidence for it in the discussion at the moment is not good enough to warrant implementation. I think the government knows that. That’s why they haven’t committed to it and Roxon has been very careful not to support the measures one way or another. If they’re enacted ANYWAY, THEN we can go on a Parliament House march.

  6. The current Federal Government’s Data Retention proposals are alarming to say the least. In my view, they clearly lay a framework for the establishment of a “Police State” – a Totalitarian Society, if you like.

    I strongly recommend that everyone reads the following article published by the Australian Broadcasting Corporation at:

    How many of you have read George Orwell’s book, “Nineteen Eighty-Four”? This novel, written during the mid to late 1940’s, is recommended reading for all people who believe in open democracy, freedom of speech, freedom of association, and the concept of “innocent until proven guilty”.

    Many would say, that “Nineteen Eighty-Four”, was a very close reflection on the society of surveillance and control, created by Joseph Stalin’s Soviet Union. Similar oppressive societies were maintained by the Third Reich’s Gestapo, and the further enhanced apparatus of control and surveillance maintained by East Germany’s Ministry for State Security (Ministerium für Staatssicherheit), known to many as the “Stasi”, for almost forty years.

    History is replete with examples of governments purporting by claim or constitution to be open liberal democracies, progressively implementing totalitarian policies over time, when left unchecked by the citizens whom they claim to represent. Australia is one such society.

    Open democratic liberal societies that support the principles of freedom of speech, freedom and equality of association, and the concept of “innocent until proven guilty”; have to be maintained by all of us – the citizenry.

    If you still have doubts, but value your freedom, consider reading George Orwell’s “Nineteen Eighty-Four”, and contemplate life as a citizen in former police states such as the German Democratic Republic (East Germany), the Third Reich, and the Soviet Union.

    Of course, dare I say it, if you’re looking for a contemporary example of a well organised police state, look no further than China and it’s policies on the aforementioned liberties, and the internet.

    YOU and I – WE, have to make it known to our lawmakers that we object to the erosion of our civil liberties and privacy.

    • @Brian

      Well said, but:

      Open democratic liberal societies that support the principles of freedom of speech, freedom and equality of association, and the concept of “innocent until proven guilty”; have to be maintained by all of us – the citizenry.

      Then why aren’t the “Liberals” saying something about it? Fact is, this data retention is being driven BY people in the Law Enforcement and Intelligence community, not government. This inquiry is setup by the government to decide if it is warranted. I have been open minded about the thing in general, but this “indefinite” data retention makes me think the people driving this are completely out of touch and only out for their own gain. I’ve always thought MAYBE 6 months retention would be acceptable IF the proper safeguards are in place AND the government and ISP’s were independently audited on their practices of keeping and using the data on a regular basis. I could see it being beneficial.

      But indefinite? No. Not ever. There’s no justification for it as far as I can see. They certainly haven’t put any forward- “Cold Cases are easier” is not a justification. Cold Cases are cold for a REASON and having unfettered access to the data won’t help you with it if you don’t get that data in the first 6 months anyway.

      This isn’t being driven by government. It’s being driven by people high in both our and foreign law enforcement and intelligence agencies. I’ve said this from the beginning, this is AN INQUIRY, not a parliament sitting. They are here to analyse if these proposals have merit. The proposals of the government, for 2 years data retention are, IMO, too heavy. I’d support 6 months, as I said, IF they were audited and independently monitored. Whether that is feasible or not is another question altogether.

      • >this data retention is being driven by people in the Law Enforcement and Intelligence community, not government

        Except that the government could have just said “no”. These proposals are so appalling that you don’t need an inquiry in order to say “no”. Any government who respects basic principles of democracy would just say “no” without an inquiry. They have that power. They are after all in control.

        It doesn’t matter whether the Coalition thinks it is good or bad. Since when did the government need the Opposition to help it tell right from wrong? How hard is it just to reject this rubbish up front?

        Unless of course the government really wants to say “yes” …

        • @OK

          Except that the government could have just said “no”.

          Yes, because every time somebody proposes something that is either controversial or even gets someone’s nose up they should just flat out say “no”….come on, that’s what the Democratic process IS FOR!

          It doesn’t matter whether the Coalition thinks it is good or bad. Since when did the government need the Opposition to help it tell right from wrong?

          This isn’t a matter of “right and wrong” it is a matter of what is a balance between being able to catch drug dealers, rapists, pedophiles, terrorists and the like and the ordinary citizens privacy, which is paramount. We’ve given up more privacy since the invention of the web since before there was real pornography in Victorian times. This is a fact of life living in a digital and ever more connected world- our privacy has to be balanced against people who USE that connection for serious criminal activity. We want total privacy? Fine- don’t think that the Police could ever catch someone committing mass fraud or that ASIO or the like could keep an eye on public chatter to predict terrorist attacks/activity.

          You may not believe this is right. Fine, but I’m sorry, this is a democratic debate. NOBODY has suggested enacting this legislation willy nilly, regardless of the outcome of the inquiry. If they did, I’d be marching on parliament house right now.

          Oh, by the way- Opposition:

          It is styled as “Her Majesty’s Loyal Opposition” [1] to show that, although the group may be against the sitting government, it remains loyal to the Crown (the embodiment of the Australian state), and thus to Australia.

          The Coalition in this instance should be standing up for Australia if they believe this is wrong. They are not. Not as a party and not even as a minority collective. Just “vague rumblings”. Which means either they DON’T believe it is inherently wrong OR they are not doing their job as Opposition.

          • >being able to catch drug dealers, rapists, pedophiles, terrorists and the like

            You do realise that the actual threshold, where a warrant is even required, is much lower than this and that the law enforcement authorities are asking for the threshold to be lowered even further?

            The original concept of “only for serious crime” has been seriously debased already – and they want more and more and more.

            Soon some traffic offences will be in range of privacy violations courtesy of law enforcement (where a warrant is even required).

            >that’s what the Democratic process IS FOR!

            How bad then would a proposal have to be in order for you to agree that the government should just reject it out of hand?

            If someone proposes that Australia meets its greenhouse gas target by random involuntary euthanasia should that go to a committee who will take public submissions?

          • @Ok

            You do realise that the actual threshold, where a warrant is even required, is much lower than this and that the law enforcement authorities are asking for the threshold to be lowered even further?

            Evidence? These reforms talk about streamlining the warrants. Not lowering the threshold.

            If someone proposes that Australia meets its greenhouse gas target by random involuntary euthanasia should that go to a committee who will take public submissions?

            Now you’re getting ridiculous. Just because you believe this is the worst thing this government could possibly do, ever, for the internet in Australia, doesn’t mean that is factually the case. I am not inherently agreeing with these reforms. I am saying the Inquiry is there to decide if they are valid. I don’t believe they are, as the government has presented them. Certainly 2 years of metadata is too much. And there’s no outline of who will pay or whether the data will be centrally stored/controlled etc. There’s simply not enough information, so they should be rejected. But that doesn’t discount the validity of taking them to an inquiry. It’s ridiculous to bring up a point like the above. The 2 have nothing in common.

          • >Evidence? These reforms talk about streamlining the warrants. Not lowering the threshold.

            Let’s be clear here … there is ***no*** threshold for access to telecommunications data (“metadata”) – unlike interception and unlike access to stored communications.

            ***no*** threshold

            ***no*** warrant required (no judicial oversight)

            ***no*** limit on how long information can be kept

            If that’s not ringing alarm bells for you then nothing will.

            When I talked about lowering the threshold, it was in connection with, for example, interception which does have a threshold. The basis for suggesting that law enforcement wants to lower the threshold is proposal “2 b. the standardisation of warrant tests and thresholds”. Read the submissions to form your own opinion as to whether standardisation will mean raising the lower threshold or lowering the higher threshold.

            Since interception is not directly relevant to this article, not directly relevant to Data Retention, I will leave comments on lowering the threshold at that. This issue is however relevant to the package of proposals as a whole.

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