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.