Next week the Parliament of Australia will debate the highly contentious and dangerous data retention bill (Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014). This bill, if passed, will mandate the collection and retention for two years of telecommunications data on all citizens – suspect and non-suspect alike – for subsequent access and analysis by intelligence and security agencies, police and other agencies.
No warrant will be necessary to access this data.
If this bill becomes law, Australia will have one of the most extensive and intrusive data collection and surveillance regimes in the democratic world.
NSW Council for Civil Liberties has written to all Labor MPs and Senators. We need you to do this too.
Mass data collection and surveillance by the state of the whole population is not consistent with core democratic values and is a disproportionate and dangerous step for a democracy to take.
Mass surveillance of the citizenry will inevitably have real and significant effects on our society and on freedoms we take for granted.
It will not make us safer or protect us from acts of terrorism or major crime. The Government has not been able to provide any hard evidence to substantiate its claim that it will. Overseas experience and evidence indicates otherwise.
It is not necessary. There is a less dangerous alternative which we do not oppose. As is being advocated in other countries, a targeted data regime focussing on suspects – not the whole population – is likely to be far more effective and would avoid the gross invasion of privacy, the undermining of long standing liberties, and the overall chilling effect of the Government’s proposal.
We need to tell our members of parliament that the only data retention regime that is compatible with robust democracy is one which targets suspects.
At the moment it looks like the amended bill will be passed with Labor’s support. The Government wants to fast-track the process and have it legislated by the end of March. It is acknowledged that the bill is faulty on many fronts and must be extensively amended before it can proceed. To date, no-one has seen the 27 amendments the Government has agreed to make to the bill.
In addition, there are numbers of issues that are acknowledged to be important that have not yet been resolved and have been referred for further inquiry. The most important of these relates to the protection of journalists’ sources and whistle-blowers. We don’t know what it will cost the nation and individual consumers. There are major unresolved issues relating to security of the data.
These issues should obviously be resolved and relevant amendments drafted before the bill is passed into law.
There is no need for great haste other than the Government’s fabricated urgency – driven by internal and electoral politics. There are there are no implications for national security in a few months delay. The agencies will continue to have access to the extensive telecommunications meta and content data that is currently held by the service providers.
We must persuade the Parliament to resist this rushed timetable.
Failure to protect journalists
The mandatory data regime will create an obvious, serious threat to robust free media in Australia. It will make it extremely difficult for sensitive information to be provided to journalists as it will not be possible to guarantee confidentiality to sources for any telecommunication of information.
It will also threaten the capacity for legitimate whistle-blowers to bring important information about official or corporate misbehaviour or corruption to public notice. This does not augur well for any democratic society.
This issue has been recognised by the powerful Intelligence and Security Committee in its recent review of the bill and by the Government in its acceptance of the committee’s recommendations. But the committee, which seems to be locked into a consensus mode for all recommendations, could not offer a solution.
“The Committee acknowledges the importance of recognising the principle of press freedom and the protection of journalists' sources. The Committee considers this matter requires further consideration before a final recommendation can be made.” (Rec 26)
The Government has agreed and referred the matter to the committee for further consideration. This new review will report on the 15th June – but it is planned to pass the bill into law in March!
This is ridiculous, dangerous and unnecessary. The impact on journalists and whistle-blowers is a central issue with deeply disturbing implications. There is no guarantee that a future amendment that effectively addresses this issue will be enacted by the Government at a future time.
We must persuade the Parliament that this bill should not proceed until the PJCIS inquiry into ‘Access to the telecommunications data of journalists and their sources by law enforcement and security agencies’ has reported and its recommendations considered by the community and the parliament.
Independent warrants too burdensome
It is not acceptable for ASIO, the AFP, police forces and other agencies to be able to access the extensive metadata of citizens on their own internal authorisation. The bill allows them to do just this – albeit within some parameters. Legal experts and organisations, civil liberties, privacy and human rights groups among others, argued the need for a warrant system – a longstanding safeguard within our legal system. The intelligence and security agencies argued – successfully it seems – that any form of warrant system would impose too great a logistical and bureaucratic operational constraint.
It would seem the self-serve system is to continue and long standing safeguards to be sacrificed.
This is a mistake and will lead to misuse, abuse and overuse of this data. The post-hoc safeguards proposed will not be adequate to protect against these outcomes.
We need to tell our members of parliament that no agencies should have access to such extensive and revealing personal data of citizens without an independent warrant process.
Where is the opposition
Our immediate challenge then is to convince the Parliament to resist the rushed timetable and carry over consideration of this bill to the next parliamentary session.
The difficulty is that there is no effective opposition to the bill’s core proposal or in defence of journalists need to protect the confidentiality of sources – nor of the legitimate whistle-blowers who are the source of important information in the public interest.
While the Greens and possibly numbers of the cross-benchers are opposed to the bill, the Labor party appears to have locked itself into a consensus arrangement with the Government and has shown no inclination to engage seriously with the real and chilling implications of mass data retention.
Their interventions in the committee and in recent public statements have been limited to insisting on changes at the margins. The Government’s proposal will proceed with all its core elements unchallenged: it will be a mass, not targeted, scheme; data will be held for 2 years, not the lesser period widely recommended, and will be accessed on the internal say-so of the agencies without need for an independent warrant authorisation.
NSWCCL has joined other organisations across the Australia to make renewed overtures to the Government and (with a little more hope) the Labor Party and cross benchers to delay the bill until identified issues – and especially the protection of journalists’ sources – are resolved.
While this delay is critical for the protection of a free and robust media and legitimate whistle-blowers, the more important challenge is to convince the parliament – including the Labor Party – to take a stronger and more principled stand against the gross intrusion into citizens’ privacy and the chilling impact on other freedoms – including a free and effective media.
We need to tell the Labor party and cross benchers that we want them to take a more principled stand on this issue and take seriously the chilling impact of mass surveillance.
- Combined CCLs submission to the Parliamentary Joint Committee on Intelligence and Security (PJCIS) inquiry into the Data Retention Bill
- PJCIS Advisory Report on the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014
- PJCIS Inquiry into access to journalists' telecommunications data
- Government response to PJCIS recommendations and NSWCCL comment