In response to wide-ranging criticisms of, and growing opposition to, proposed data retention and increased surveillance powers for Australian spy agencies, Attorney-General Nicola Roxon has gone on the offensive.
One of the proposals released in a government discussion paper would force telecommunications companies to store their customers' data for up to two years. This has been criticised by a broad range of civil rights and activist groups such as the Electronic Frontier Foundation, GetUp and Anonymous, through to the Australian Law Council, telecommunications industry groups, the Greens and even the Coalition.
In a week-long campaign that began early this month, including letters to newspaper editors, speeches and a YouTube video, Roxon spoke in favour of the proposals and hit back at critics of the proposed changes.
Speaking to ABC Radio on September 11, Roxon said: “Unless people are wilfully trying to misinterpret this, it's been clear that the proposal is about the use of metadata. What that means is the fact that an email has been sent, the time it might have been sent, or who it's been sent to, and remember this is when a crime is being investigated, it's not information being stored about everyone forever. It does not deal with content of emails.”
And that’s the crux of this debate - what exactly constitutes metadata and who is responsible for it – so far the specifics in this regard have been extremely lacking.
When making a fixed-line phone call the metadata - the date, time, caller number, receiver number - is already generated in the exchange and stored by phone companies as part of the process of making the call (or more precisely the billing), making the collection of this information relatively straightforward. Most importantly the metadata is completely separate from the content.
The problem is that the equivalent metadata for electronic communications such as email or a Voice-over-Internet Protocol phone call is not generated in the same manner as fixed-line communications, and in some cases the metadata is not stored separately from the content. How this information will be collected without compromising the content remains unclear.
ASIO has backed the proposed changes because of the advantage it will give them in intelligence gathering. Roxon and ASIO are quick to point out that they are just interested in the metadata of the communications and not the actual content. But details on how this information will be protected are thin on the ground.
The argument being made is that since the content of communications won't be collected, there is no potential for a privacy breach. However given that information would be stored for two years, concerns that this information could be leaked have not been addressed. Besides that, a large part of the collected metadata would be a person's location, and since communications are becoming more mobile, there is justifiable reason for concern.
As the discussion paper and ASIO have pointed out, the spy agencies already have access to this data under the current laws. The proposals are merely to make it easier for these agencies to access this information with less oversight.
This is where the majority of criticism has been leveled - why are the new powers required in the first place?
The government’s tactic appears to have been to test the level of opposition to the proposed changes. When critics have pointed out the problems with implementing the most extreme proposals in the discussion paper, the government has responded by claiming opponents are being “hysterical” and “lying” about the worst aspects.
Critics have merely pointed out that the powers have a very real potential for abuse and privacy breaches. Instead of clarifying the discussion, Roxon’s intervention seems to have only clouded the issue further. As the opposition to the proposed laws continues to grow, it appears that the only people in favour of the proposals are the spy agencies and the government.