Until governments cease using national security as a way of avoiding scrutiny, they should not be trusted on surveillance.
Polling by Essential Research this week showed only 9% of Australians have a lot of trust in the Australian government to protect their privacy, compared to 22% who have no trust at all. More Australians disagreed that governments are justified in collecting information on all people regardless of whether there is any suspicion of wrongdoing than agreed with it, 45%-42%.
That second result is significant because it goes to the heart of governments’ shift from case-based surveillance to mass surveillance over the last decade, driven by the War on Terror, the rise of a cyber military-industrial complex and the development of software and hardware able to handle vast amounts of data.
This shift was only suspected until recently; indeed, the idea of total internet surveillance by governments was dismissed as tinfoil-hat stuff by some until NSA-leaker Edward Snowden documented it. But it’s a critical shift: traditionally in western societies, the state only got to place you under surveillance if, for whatever reason, you were suspected of criminal activities; security agencies like ASIO, MI5 and the FBI and various state “special branches” went further and spied on people for ideological reasons, but that was still informed by the logic that the state only got to spy on citizens if it had a reason.
Now governments prefer to spy on all citizens, permanently. But different governments have moved at different speeds. The US government, particularly under President Barack Obama, secretly constructed a surveillance state straight from the work of George Orwell. The UK government was already far down the road of surveillance with its obsession with CCTV, before embracing the opportunities for internet and telecommunications surveillance developed by the US.
But while both major parties have a history of rapidly expanding intelligence agencies’ surveillance powers, to its credit the Gillard government elected to have a public debate about mass surveillance. And data retention is mass surveillance. It is not, as claimed by governments, a mere extension of traditional analogue case-based surveillance into the digital realm. Retention, even of metadata alone enables 24-hour physical tracking of users via mobile phone location. And retention of all data enables the establishment of patterns of interaction among users, even those not targeted for operational purposes, that traditional wiretaps could never provide; in some ways, the content of communications is less important than the metadata agencies want to retain.
But while the Gillard government declined to go as far down the path of other governments on data retention, it was every bit as enthusiastic, if not more so, about using national security and “operational reasons” to withhold information. All attempts to learn what the government knew about the NSA’s surveillance programs in relation to Australian citizens, what information it had obtained from those programs and what measures it had taken to protect its own secrets have been rejected on the basis that such information relates to “operational matters” or would otherwise impinge on national security. Despite being a key player and recipient in the NSA’s mass surveillance, the Australian government has been able to avoid all scrutiny of its role with its stonewalling tactics.
Obtaining government documents under freedom of information laws with vast slabs redacted under the blithe assertion of “national security” isn’t merely the ABC’s experience; documents obtained by Crikeyon data retention had been even more densely deleted based on a combination of Cabinet, commercial confidence and operational reasons.
And new Immigration Minister Scott Morrison has gone further in invoking “operational reasons” to withhold information about asylum seeker issues that was readily available under the previous government.
As with the Gillard government’s refusal to comment on the Snowden revelations, even this blatant dodging of transparency has attracted little media criticism. In fact, some in the media actually support it. In July, Australian journalist and former spy Cameron Stewart launched a disgusting attack on Edward Snowden, calling him a “hypocrite” and suggesting he was a traitor who acted “illegally and immorally”. Stewart went on to claim that Snowden had revealed no illegality or “scandalous behaviour”, a claim shortly rendered laughable by evidence from the NSA itself that it had broken US law on many thousands of occasions, that it spied on US economic rivals and that its agents used NSA surveillance apparatus to stalk women. Curiously, Stewart has been silent on Snowden’s revelations in the months since then.
This reflexive reliance on national security to avoid scrutiny is deeply corrosive of whatever remaining trust voters have for governments. To reject transparency and scrutiny for “operational reasons” when it might affect actual, ongoing operations in relation to individual targets is one thing, but under mass surveillance, whether that of the NSA, or that sought by our own government, now everyone is the operation. Government has changed the rules on national security to spy on all of us, but still rejects transparency based on rules and exceptions developed in the analogue world. There’s been no trade-off between governments and citizens — they can now know everything about us, but are actively reducing the amount we can learn about them.
In that environment, the only means by which we can find out what governments are up to is, contra the apologists for the surveillance state, to rely on whistleblowers to reveal national security information and to fight every extension of intelligence agencies’ powers every step of the way, until governments accept they need to be open about mass surveillance.