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Government unveils huge wishlist of new surveillance powers

The Attorney-General’s Department has unveiled proposals for a massive expansion of intelligence-gathering powers including data retention, the surveillance of Twitter accounts, forcing people to give up computer passwords, ASIO stop-and-search powers, government authority to direct telecommunications companies about infrastructure and the power for ASIO to plant or destroy information on computers.

The proposals are outlined in a discussion paper provided for a major national security inquiry by Parliament’s Joint Committee on Intelligence and Security announced yesterday.

Attorney-General Nicola Roxon sought to initiate the inquiry in May when she wrote to the Committee proposing an inquiry into range of proposals to “update” various aspects of national security legislation via a rapid review to be conducted by the end of July. The committee baulked at the timing of the reference and two months of negotiations followed.

The committee is chaired by Victorian MP Anthony Byrne and includes ALP members Kevin Rudd, Mark Bishop, Ursula Stephens, Michael Danby and John Faulkner (the only ALP Left figure on the committee). Phillip Ruddock, who savagely curtailed Australian civil liberties through the Howard government’s anti-terrorism legislation, is the deputy chair and oppositions frontbenchers George Brandis and David Johnston are also on it, along with Andrew Wilkie and John Forrest.

The final terms of reference for the inquiry match the proposals sent to the committee by Roxon, and include the controversial 2 year data retention proposal long urged by Attorney-General’s bureaucrats. However, the committee has now also published a discussion paper prepared by the Attorney-General’s Department to commence the inquiry, outlining the rationale for three types of proposals: those the government wants to progress, those it is considering, and those it is merely seeking views on.

The discussion paper provides highly revelatory detail for what sometimes look fairly anodyne terms of reference, and demonstrate the sweeping nature of the proposals sought by intelligence agencies. Some of the proposals sought by Attorney-General’s Department include:

  • The extension of telecommunications interception powers to social media like Twitter and Facebook (a “considering” proposal, rather than one the government wants to “progress”). “The exclusion of providers such as social networking providers and cloud computing providers creates potential vulnerabilities in the interception regime that are capable of being manipulated by criminals,” AGD says. “Consideration should be given to extending the interception regime to such providers to remove uncertainty.” In May, it was revealed the FBI was pushing for a similar law in the US to enable it to wiretap Twitter and other networking sites;
  • Under the rubric of “standardising warrant tests and thresholds”, which is a proposal the government wishes to “progress”, the paper proposes reducing the threshold for telecommunications content interception from offences carrying 7 years’ imprisonment to a lower, unspecified level, but approvingly cites the 3-year imprisonment threshold for stored communications, in effect significantly widening the scope for telecommunications and data interception;
  • Reducing accountability for agency use of intercepted data by dumping legislated requirements for record-keeping because they are “one size fits all”, inflexible and “process oriented”. The government wishes to “progress” changes to accountability processes that are “more attuned to providing the information needed to evaluate whether intrusion to privacy under the regime is proportionate to public outcomes”.
  • A “seeking views” proposal is a mechanism for direct government intervention with carriage and carriage service providers to address security issues. Senior bureaucrats could direct a provider to undertake ”modifications to infrastructure, audit, and ongoing monitoring, with costs to be borne by the relevant C/CSP. Grounds for directing mitigation or alternative actions would ultimately be determined by security agencies.”
  • Several expansion of ASIO powers, all of them in the “seeking views” category: a new mechanism to enable the ASIO Director-General to authorise any criminal conduct by its agents short of sexual assault or conduct likely to result in death or serious injury or forcing someone else to commit a major crime, to enable agents to more effectively operate undercover; removing the current prohibition on interfering with computers targeted in warrants, allowing ASIO agents to plant material on computers to destroy or alter material; gain access to any other computer, including by force if necessary, in order to access a computer targeted in a warrant, and power to stop and search people as well as enter premises with a warrant; and
  • A “seeking views” mechanism to enable the Minister to remove prohibitions on intelligence agencies other than ASIO from gathering intelligence on Australians, in order to enable them to cooperate with ASIO (principally ASIS).

People familiar with constant updating of surveillance laws and ASIO powers in recent years will be wondering why such massive changes are needed when the framework for these powers has been regularly amended. But AGD has seen that argument coming and prepared for it: there is a need for “urgent reform”, indeed “holistic reform”, the paper argues, because constant, piecemeal amendment has fragmented the impact of the relevant acts. That is, the very fact that surveillance and intelligence-gathering powers have been regularly expanded over the last decade means they need to be expanded even more.

With its invocation of “removing uncertainty”, “process oriented” accountability requirements, “one size fits all regulation” and “holistic reform” the paper also demonstrates how bureaucrats have absorbed the rentseeking language of business, adapting business complaints about regulation to their own purposes of reducing oversight of government actions.

But there appears to be virtually no discussion in the paper of two of the most draconian “seeking views” proposals, the mandatory two-year data retention régime (although the paper complains that “some carriers have already ceased retaining such data for their business purposes and it is no longer available to agencies for their investigations”), and making it illegal to refuse to surrender your computer password. Why wasn’t AGD able to devise justifications for these remarkable attacks on civil liberties?

The AGD paper amounts to a truly extraordinary wishlist of surveillance and intelligence-gathering powers that may be even greater than the Howard government’s anti-terrorism campaign. Amongst other things, it is in effect a declaration of war on the internet, an attempt to corral social networking and personal computing into an analog-era surveillance framework, to empower governments to take control of privately-owned internet infrastructure and give intelligence agencies far greater flexibility in how they access and use data, all while reducing accountability.

Submissions to the inquiry are due by 6 August; the inquiry has no scheduled reporting date but is anticipated to report by the end of the year.

33
  • 1
    Edward James
    Posted Tuesday, 10 July 2012 at 1:24 pm | Permalink

    Give us the freedom to access all that information which the government currently hides or redacts. Let us do that first! Edward James

  • 2
    Andrew McMillen
    Posted Tuesday, 10 July 2012 at 1:48 pm | Permalink

    Great report Bernard, thanks.

  • 3
    tinman_au
    Posted Tuesday, 10 July 2012 at 2:13 pm | Permalink

    all while reducing accountability”

    There is very little left that they can be accountable for now considering how they can side-step/ignore FOI requests. With the decline of newspapers and real investigative journalists the accountability issue is probably the most worrying…

  • 4
    Michael de Angelos
    Posted Tuesday, 10 July 2012 at 2:25 pm | Permalink

    I’m amazed they didn’t trot out the old ‘kiddie p*rn’ claim- a billion websites and so on.

    The idea of giving ASIO/Keystone Kops any new powers is scary. They are the bunch that helped promote the phoney WMD fiasco that led to the deaths of so many Iraqis and Afghanis and are probably why we have so many boats heading this way.

  • 5
    Michael de Angelos
    Posted Tuesday, 10 July 2012 at 2:27 pm | Permalink

    tinman_au :With the decline of newspapers and real investigative journalists the accountability issue is probably the most worrying…

    don’t worry, a prominent stock-broker only yesterday told crikey our media needs to embrace s*x, t*its and b*ms ala News Ltd.

  • 6
    David Henot
    Posted Tuesday, 10 July 2012 at 2:29 pm | Permalink

    Maybe so Tinman, but the Roxon and bureaucratic acquiescence is deplorable and underlines this continued process of dereliction of duty to the Australian people as part of this world-wide creeping flesh “security surveillance.”

  • 7
    vealmince
    Posted Tuesday, 10 July 2012 at 2:30 pm | Permalink

    Riiight. So ASIO could force you to provide your password, plant evidence on your PC, lock you up or deport you, then remove the evidence? Cos, you know, ASIO’s never got things wrong, fit anyone up or succumbed to political pressure… (*dons tinfoil hat*)

  • 8
    CHRISTOPHER DUNNE
    Posted Tuesday, 10 July 2012 at 2:48 pm | Permalink

    And this from the same people who were quick to call Assange a criminal? It’s the craven race for chest beating in the game called “keeping us safe”.

    We do need to be kept safe; from them.

  • 9
    Dogs breakfast
    Posted Tuesday, 10 July 2012 at 3:29 pm | Permalink

    Like all forms of policing, they always seem to require new laws to allow them to arrest these danged too clever by half criminals.

    Apparently there aren’t any laws against drug running, shooting, owning illegal firearms, inflicting grievous bodily harm, intimidation or standover merchants, so NSW and other states have run for the cover of anti-bikie laws, for example.

    More laws means more surveillance which means more public servants, which sort of doesn’t square well with the other stories about getting rid of public servants.

    If only the left hand of government could talk to the right hand so they could get their stories straight.

  • 10
    Madonna Airey
    Posted Tuesday, 10 July 2012 at 3:34 pm | Permalink

    I see your points - interesting Vealmince…
    I once wrote an essay on Privacy and see both sides of the argument.
    My concern in matters of surveillance is the notion of who is monitoring those doing the surveillance? In my view they have to be beyond reproach for me to feel comfortable with the idea.
    Trust can be an exploitable value.
    For the record isn’t it probable twitter is already being monitored? ☼

  • 11
    Posted Tuesday, 10 July 2012 at 4:25 pm | Permalink

    I love the bit about ASIO being allowed to commit crimes short of murder. “Well, in order to sustain my cover, I smacked that kid around several times a day for weeks, and he never died before.”

    The Coalition like to talk about “the slippery slope”, but they seem to be ignoring this one. Take away citizens’ rights, empower government reps to do anything they want, and you head inexorably towards a cripplingly corrupt totalitarian state.

    What was it Senator Xenophon said? “In Australia there is no limit to what you can believe, but there is a limit to how you can behave. It is called the law, and nobody is above it.”

    Despite their beliefs in a need for omnipotence and impunity, our “security services” need to be subject to the same laws as other Australian citizens.

  • 12
    michael crook
    Posted Tuesday, 10 July 2012 at 5:03 pm | Permalink

    Interesting to see recently the “inhibiting” of the right of activists to international travel by air by the Australian Government (hotly denied, but true nonetheless). This is similar to the system in the US for many years of denying left wing activists the right to air travel. They can travel by train, bus or car but not by plane.

    It is all very kafkesque, and quite scary isn’t it. But we will probably all be ok and long as we keep quiet.

  • 13
    j.oneill
    Posted Tuesday, 10 July 2012 at 5:33 pm | Permalink

    The only surprise Bernard is that anyone is surprised at this latest assault on our rapidly diminishing liberties. A whole battery of laws was passed under the Howard regime with the enthusiastic support of Labor. I think it is correct to say that not a single one of those repressive laws has been modified by the Labor governments under either Rudd or Gillard.

    Now we have another huge inroad being planned. To pretend that this is to keep us ‘safe’ in a world beset by the so-called terrorist threat merely underlines the fact that governments do not care about reality so long as their power is enhanced and they are able to continue with business as usual. That business incidentally includes acting as a sock puppet for the world’s greatest terrorist nation, the USA, and supporting Israel regardless of its systematic and sustained assault upon the Palestinian people and anyone else who dares to challenge their arrogant and illegal behaviour.

    The behaviour of the US government post 9/11 as brilliantly set out in books by Chris Hedges and Glenn Greenwald among others is a forerunner of what is happening here. When the last of our dwindling freedoms disappears in the name of ‘national security’ don’t say you weren’t warned.

  • 14
    The Old Bill
    Posted Tuesday, 10 July 2012 at 7:25 pm | Permalink

    ASIO is advertising for agents again too, might be a fun time to join!!!
    That George Brandis is so squeaky clean and right wing on Q&A, but I reckon if I could just get his password and plant something on his laptop we could “render” him to Guantanamo Bay with Julian Assange.
    Oh and I’d like to terrorise a few innocent people in Canberra lifts for good measure___

  • 15
    AR
    Posted Tuesday, 10 July 2012 at 8:26 pm | Permalink

    The usual bromide that will spoonfed, by shoutjocks et al, to the masses will be if you’ve nothing to hide, you’ve nothing to fear.
    Anyone who’s ever ever has a chance to see either their own file (ASIO, credit agency, local council) will realise that the real problem is NOT just the government knowing all abiout you but when it (thinks) it knows more than you do - ie when the supa-dupa spooks pad their pathetic files with innuendo, rumour, speculation and plain, common-or-garden B/S.
    All the LEAs use the Admiralty Rating system, which ranges fro A1 to F6, A1 being a sworn, observed fact and F6 being the stuff the budgie would object to having at the bottom of its cage. The vast majority of intell/data, for a variety of inglorious reasons - not forgetting job preservation - is rated C4 to E2.

  • 16
    Hamis Hill
    Posted Tuesday, 10 July 2012 at 9:39 pm | Permalink

    So what was the late Lionel Murphy looking for again when he busted into ASIO?
    I think the keeper of dirty secrets, Tony Abbott would know, he’s part of the deluge of right wing extremism that followed the former federal attorney general’s actions.
    Closely linked to the “Uglies” and DLP stooges in Howard and Abbotts political stamping grounds.
    Too hot for you Crikey?

  • 17
    Hamis Hill
    Posted Tuesday, 10 July 2012 at 9:42 pm | Permalink

    Apparently the history of former Federal Attorney General Lionel Murphy and ASIO is too hot for Crikey to publish?

  • 18
    freshly cut grass
    Posted Tuesday, 10 July 2012 at 10:24 pm | Permalink

    And people claim the Government (both major parties) should do and interfere more to ‘help’ us. Rubbish. The Government (current and past) both pursue a policy of ever draconian laws and regulations designed to restrict and curtail the freedom of the ordinary public.

    We need someone like Ron Paul to stand up against the Government and question why such ridiculous laws are needed. Long live Julian Assange.

  • 19
    AR
    Posted Tuesday, 10 July 2012 at 10:28 pm | Permalink

    Freshy Extruded Grass=amerikan astroturfer.

  • 20
    Owen Gary
    Posted Wednesday, 11 July 2012 at 12:57 am | Permalink

    It seems as though if we are not protesting in the streets our aquiescence is all the approval the “Global Control Cabal” needs to squash us further under the jackboot. Anyone who has seen the way people in the UK & US have been monitored in the last few years is something reminiscent of a 1980’s sci-fi movie.

    When I first saw the airliner hit the trade tower 9/11 on the box, the first remark I made to my wife was “there goes our civil rights & liberties” I still think that was one of the main reasons why this happened, there were of course other reasons but I think everyones past that “War on terrorism nonsense”
    Even if there is genuine terrorism you ride with it as part of a free society & democracy, you don’t turn your way of life into a draconian sub culture.

    I guess with 7 billion on the planet & rising with information so readily available at our fingertips, the world government thinktanks & their financial masters who control them are crapping themselves, hence they probably thought a plan “B” was needed. I guess this is part of (project echelon) which was kick started back in the 70’s from memory. Next come the RFID tags just to prove you are actually who you say you are garb.

    It’s one thing to watch a sci-fi movie all those years ago, but it’s a stone cold sober feeling to actually be playing a part in it. Perhaps we are still allowed to believe we are free???? Whoops another film springs to mind (Minority Report)

    Those who would sacrifice their liberty for security deserve neither!!

    Benjamin Franklin.

  • 21
    Stephen
    Posted Wednesday, 11 July 2012 at 9:09 am | Permalink

    Go, Nicola Ruddock. Give those guys in their new $630m temple 630m new things to do.

  • 22
    Liamj
    Posted Wednesday, 11 July 2012 at 9:27 am | Permalink

    Given ASIO & AFPs cluelessness on WMDs, refugees, drug smuggling, and pricefixing, it seems they need all the help they can get .. but i don’t teach my kid to drive by handing them the keys. Maybe get the boys a subscription to something not News Corp? Show them how to find SBS on the telly?

    @ Madonna Airey - you may be interested to read that CIAs venture capital arm In-Q-Tel owns a chunk of Twitter. This may seem to jar with prolonged legal battles over access to tweets, but i suspect they are about admissable evidence rather than actual knowledge of who said what.

  • 23
    Madonna Falsa
    Posted Wednesday, 11 July 2012 at 10:29 am | Permalink

    Awesomely researched article Bernard Keane and explicitly great comments to match.

  • 24
    Filth Dimension
    Posted Wednesday, 11 July 2012 at 10:56 am | Permalink

    Sorry Old Bill but recruitment closed at the end of March and there are currently no positions available.

  • 25
    bluepoppy
    Posted Wednesday, 11 July 2012 at 11:39 am | Permalink

    What about threats to privacy, freedom of speech and civil liberties in this rush to protect. Governments are so busy ‘protecting’ us from these perceived threats, they are letting go of some of the basic tenets of democracy. We should all be alert and alarmed at these suggested changes. Andrew Wilkie case (and others) good example of where governments can use their intelligence agencies to further other agendas.

  • 26
    Owen Gary
    Posted Wednesday, 11 July 2012 at 2:32 pm | Permalink

    They are already monitoring all communications on the planet (including these posts) the framework of the act is just to make it official.

  • 27
    John Tevelein
    Posted Thursday, 12 July 2012 at 11:10 am | Permalink

    And we thought the “Australia Card” was going to be bad. Where is our new Citizen (Ewart) Smith?

  • 28
    Nigel Waters
    Posted Thursday, 12 July 2012 at 12:33 pm | Permalink

    Thanks Bernard for blowing the whistle on this latest power grab. Ironic contrast with pathetic changes to the Privacy Act currently in Parliament, and history of weak safeguards and enforcement. Usual ridiculously short timetable for public debate on these major proposed changes to surveillance powers. Long overdue for Parliament to stand up against the constant and insidious extension of routine monitoring. We know that security agencies can’t cope with the volume of information they already have - when will they realise that when looking for a needles in haystacks, it is not very smart to keep building bigger haystacks!? Australian Privacy Foundation http://www.privacy.org.au, Councils for Civil Liberties, EFA and others are doing what we can, but we need help.

  • 29
    Moira Smith
    Posted Thursday, 12 July 2012 at 8:43 pm | Permalink

    Phillip Ruddock, who savagely curtailed Australian civil liberties through the Howard government’s anti-terrorism legislation, is the deputy chair …’
    Nuff said.

  • 30
    Moira Smith
    Posted Thursday, 12 July 2012 at 8:54 pm | Permalink

    One of the paper’s recommendations according to author is ‘making it illegal to refuse to surrender your computer password’. Well, ASIO, you just have to know the names of the person’s current or past (deceased) pets and you’re half way there. Yes I know we’re all supposed to have passwords with letters and numbers and other characters but when we’ve got to have 16 of these things there’s only so much you can remember. Some sites when I log I have to do ‘oops I’ve forgotten my password’ every time because I’ve forgotten which pet’s name I used when I first registered.

  • 31
    AR
    Posted Thursday, 12 July 2012 at 9:06 pm | Permalink

    Moira - the offense refuse to surrender your password just shows how lazy, incompetent and complacent the sheltered workshops for the envious (someone somewhere isn’t as miserably inadequate as they are</I) - demonstrably else they'd not be doing such dishonourable work.
    Any half competent tekky with your hard disc would by-pass p/w protection before their coffee had coolled.

  • 32
    AR
    Posted Thursday, 12 July 2012 at 9:08 pm | Permalink

    oops, italics should have been ended after “..they are”

  • 33
    peterg
    Posted Monday, 23 July 2012 at 1:22 pm | Permalink

    why force people to reveal their paswords when they can put spy cameras everywhere? sorry, I’m getting a bit ahead here. I have to get a secretary who can type in Stenography, the dumber the better.

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