Data Retention Bill threatens privacy and legal rights

November 14, 2014
The government's bill will compel telecommunications companies to retain for two years all Australians' metadata.

Next year will see the 800th anniversary of Magna Carta, the charter of rights that the barons of old England forced King John to sign when they cornered him at Runnymede-on-Thames in 1215.

While we may doubt that the barons intended that the rights they sought should apply to ordinary folk, Magna Carta nevertheless effectively introduced the legal concept of the presumption of innocence — the principle that an accused person is innocent until found guilty beyond reasonable doubt by a jury.

After more than a decade of attacks on our legal rights by federal and state Labor and Coalition governments in the name of "security" and fighting terrorism, the presumption of innocence in Australia has been severely weakened. Queensland's Vicious Lawless Association Disestablishment Act (VLAD), which establishes guilt by association, is just one example.

The Abbott government's Data Retention Bill will, if passed, be another step along this road because it will compel telecommunication companies to retain, for a minimum of two years, the "metadata" of every subscriber in Australia. This would apply to every woman, man and child in possession of a device, even if they have never been convicted of, charged with, or even suspected of engaging in illegal activity.

While federal Attorney-General George Brandis initially struggled to define metadata, it appears to mean the identity of the communications subscriber, the source, destination, date, time and duration of the communication, the type of communication and the location of the equipment.

The Greens have expressed their strong opposition to the bill and challenged the ALP — currently sitting on the fence — to join them.

Speaking on October 30, Greens communications spokesperson Senator Scott Ludlam condemned the legislation as "an outrageous attack on Australians' fundamental right to privacy" which "does not represent a proportionate response to the needs of law enforcement authorities. The bill contains no description of the metadata it is seeking to access and no details about the cost of this unwelcome new surveillance tax."

"Data retention", Ludlam said, "will make a mockery of the ability of journalists to protect their sources. When the government has access to a log of every phone call made in Australia and every email sent, the practice of whistleblowing will cease to exist.

"Since the idea was first floated in 2009, mandatory data retention has been dissected and rejected by almost every major stakeholder group ... including the telecommunications industry, civil liberties groups, media organisations, journalists, political parties and think tanks across the political spectrum."

Green Left Weekly spoke to Ludlam early this month about the bill. He said that, under existing legislation, 580,000 requests were made by government to telecommunications companies last year in 2013, of which 340,000 were lodged by agencies — such as the Australian Federal Police and ASIO — which come under the Attorney General's portfolio. Currently this can be done without a warrant.

If agencies want a particular subscriber's metadata to be retained, they may at present serve a retention notice on the relevant company.

"Clearly, this action is a breach of privacy, but it is not as bad as indiscriminate data retention", Ludlam said.

The government has indicated that, under the proposed law, the contents of subscribers' communications and their browsing history need not be retained for the two-year-period.

Green Left Weekly asked Ludlam whether he was reassured by this. He said that if data is to be retained "the scope of the data will creep outwards. Under existing law, there is nothing to stop telcos voluntarily retaining data. The distinction [between compulsory and voluntary data retention] is becoming increasingly blurred." The risk of "scope creep [is] 100%", in Ludlam's view. The time for which data is retained could be lengthened or the breadth of the data which is collected could be increased.

Currently, any body that enforces a criminal law, a law imposing a pecuniary penalty, or a law protecting the public revenue can seek telecommunications data. The new bill would enable a body which is not a "criminal law enforcement agency" to be declared to be such by the Attorney General, potentially increasing the amount of data to be collected. Ludlam said that this provision would give the minister the discretion to "open and close the door" to such agencies.

Brandis has claimed that the proposed regime cannot and will not be used to crack down on internet piracy (of books, films and so on) because "breach of copyright is a civil wrong".

But Dr Matthew Rimmer, Associate Professor at the Australian National University's College of Law disputes this, saying that Australian copyright law "has long had criminal offences associated with it".

Ludlam agrees with Rimmer and says there are several ways people could be prosecuted under this law. "The [proposed] Trans-Pacific Partnership could force Australia to become a de facto intelligence gatherer" for overseas copyright holders. Ludlam forsees that production companies could subpoena telecommunications subscribers' data to identify and prosecute them. The government would not need to be involved for this to happen.

There is no dispute that the cost of retaining every subscriber's metadata for two years will be very high. The government has commissioned a study into the likely cost of its proposal, but its findings have not yet been received.

According to Ludlam, one company has estimated the industry-wide cost to be $600 million a year. Ludlam said it is "extraordinary" that the cost — effectively a surveillance tax that will fall on almost everyone, both as taxpayers and subscribers — has yet to be definitively estimated.

It is likely the fate of the Data Retention Bill will be settled in the Senate. For the bill to be defeated, Labor will need to join the Greens and vote against it.

Given Labor's recent track record of helping the government pass its security legislation virtually on the nod (only to regret some of it later) there can be little confidence that it will behave differently this time.

Only a big community campaign could fortify Labor sufficiently to adopt a position opposing the bill.

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