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Surveillance advocates hit us with their best shot

The advocates for data retention have now had an opportunity to put their case, and they’ve failed to offer anything credible.

A week into the “debate” about the government’s new round of anti-terror laws, and advocates of surveillance have now had time to recover from the initial bungling of the argument for data retention and present their case. The results have not been enlightening.

It’s noteworthy that much of the case for data retention has been made by The Australian, an outlet that led the cry against Labor’s proposals for media regulatory changes last year but which in the face of a clear threat to a free press has radically changed its view. Gone is the hysteria and and hyperbole directed at Labor’s proposals for greater self-regulation, replaced with justifications for a measure that has been used elsewhere to pursue whistleblowers. It’s perhaps understandable — The Australian’s readership is elderly, and as data from Essential shows today, only the elderly, who on average have far less experience of IT than younger people, support data retention. The Australian is front and centre in the first argument advanced to justify data retention:

Bad things are happening in Iraq, so therefore we need more draconian laws here.

This connection was openly made by Defence Minister David Johnston yesterday, who said that the photo of a decapitated head on the front page of News Corp newspapers “underscores the importance of the counter-terrorism laws we are seeking to enact”, as though a failure to retain metadata or let ASIO plant malware on people’s computers would lead to severed heads on the streets of Australia.

The same argument was made by The Australian’s Cameron Stewart last week, when he railed at me as part of the “hard Left” opposing the reforms (a comment likely to alarm the Institute of Public Affairs, which vociferously opposes data retention). Stewart is an enthusiastic and uncritical stenographer for his former colleagues in intelligence agencies and a defender of the National Security Agency’s mass surveillance, but despite being able to call on his friends in the Australian intelligence community for material, his arguments failed to get much better than name-calling. He quoted a report from a British security consultancy (no conflict of interest there) purporting to show “terrorism-related deaths had increased by one-third during the past 12 months”. Except, the report itself makes clear that any increase has occurred outside Western countries — in places like Iraq, Libya, Kenya and Egypt — and that all Western countries remain “low risk”. Both ASIO chief David Irvine and the Prime Minister backed this up. “I stress that the terrorist threat here in this country has not changed,” Abbott said last week.

Stewart’s argument relies on people emotionally responding to overseas events as applicable here. At least he was honest about this and thereby explained why The Australian has taken to running pictures of severed heads on its front page, declaring “among mainstream Australians, the acceptance of new laws has been greatly helped by the front-page coverage given to the toxic social media postings of Australians Khaled Sharrouf and Mohamed Elomar, boasting of their murderous activities in Syria and Iraq”.

But advocates like Stewart have been unable to point to any evidence from overseas that data retention has prevented terrorist attacks or helped solved crime. That’s because there isn’t any. Brandis, ASIO and the AFP can’t simultaneously argue that data retention is widely used overseas and ignore that the overseas experience is it doesn’t work.

We already give away our data to social media, so what’s the problem?

This has been the line from Jennifer Hewett at the AFR and the unfortunate Mitchell Bingemann from The Australian. It’s also the most easily disposed-of argument. Participation in social media isn’t mandatory like data retention would be. And, more to the point, Facebook, Twitter and apps don’t have armies, drones, court systems, intelligence and agencies and police forces that can kill you or lock you up. Next.

If you have nothing to hide you have nothing to worry about.

Well, yes, someone actually said this: News Corp’s David Penberthy. We’ve explained in detail how insidious this argument is previously. But Penberthy is adamant. “ASIO can go through my computer any time they like. A quick squizz at the past week’s history shows they’ll find repeated hits on the AFL ladder predictor and a couple of articles from The Diggers Club about how to grow potatoes. If you have done nothing wrong, you should have nothing to hide,” he said. Well mate, if you’re a journalist and you have nothing to hide on your computer, you’re not much of a journalist.

But metadata helped in the investigation of X.

It’s more than a little unseemly to turn the murder of Jill Meagher into a national security debating point, but it has been done by both agency heads and Attorney-General George Brandis. Stewart also argued that metadata (and therefore, he wants you to think, data retention) “played a critical role in uncovering the country’s two largest terror plots”. But what he doesn’t say, and those invoking Jill Meagher don’t say, is that there is a data retention mechanism that exists right now: chapter 3 of the Telecommunications (Interception and Access) Act 1979 allows agencies to ask communications companies to preserve data and/or retain it on an ongoing basis, enabling them to obtain the data of, say, a missing person or a returning suspected jihadi, without having to store the entire population’s data. They don’t even need a warrant to issue a preservation notice. Why this mechanism isn’t good enough is never explained by advocates.

Companies won’t be asked to retain anything they don’t already retain.

This has been a key line from the Prime Minister. It is simply, demonstrably, incorrect, as iiNet’s Steve Dalby has repeatedly explained. iiNet, for one, doesn’t keep IP addresses, which we know are definitely in the scheme.

Data retention is an alternative to more intrusive forms of surveillance.

That’s about the only coherent argument from Henry Ergas in yesterday’s Australian. Ergas is normally an economist, but is apparently an expert in national security as well, an area where he’s been hiding his light under a bushel for many years. “[W]ere metadata collection undermined,” he says, “the alternative would be even greater use of lower-tech methods, such as interception, physical surveillance and property searches.” Well, Henry, that’s actually fine. All of those “lower-tech methods” require a warrant, enabling some independent oversight of the agencies involved, while accessing metadata can be done with no justification whatsoever.

Nearly all of these justifications for data retention have been accompanied by an acknowledgement that the government has bungled the explanation of its changes, but then waved that away as mere ineptitude. Inept it was, but there’s more to it than that: it illustrated that the most senior figures, including the Prime Minister, simply didn’t understand key elements of the policy they agreed to, but apparently simply accepted without consideration the claims put forward by agencies. No one elected the heads of ASIO, and the AFP, and the Attorney-General’s Department. And they haven’t made the case for mass surveillance, either.

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  • 1
    klewso
    Posted Tuesday, 12 August 2014 at 1:26 pm | Permalink

    The Oz trying to sell “Data Retention” - a Limited News Party Government initiative?
    Like Murdoch’s UK Limited News franchise “retained” “three(?) million” emails from when Brooks was running the show?

  • 2
    klewso
    Posted Tuesday, 12 August 2014 at 1:31 pm | Permalink

    Originally?

    If you have nothing to hide - you have nothing to worry about!”? Rebekah Brooks - toiling over a hot delete button (only 500,000 to go)?

  • 3
    Posted Tuesday, 12 August 2014 at 2:04 pm | Permalink

    The post-NSA overreach and statistical evidence should rebalance the argument in favour of privacy and targeted surveillance - not dragnet. However GCHQ and ASIO continue to swim upstream in a river full of cash and data with poor oversight.

    Brandis, his demented party and the media apologists are a traitor to the general public’s freedoms.

  • 4
    Posted Tuesday, 12 August 2014 at 3:09 pm | Permalink

    Is it a coincidence? Why is it that whenever the Libs are in power the never ending wars carried out in the rest of the planet, suddenly assume ‘Total War’ importance, whereas with a Labor government in power all we have to contend with is corruption at a state level?

    Is it because Liberal Party leaders are so desperate for a photo op they dredge up any excuse for some publicity?

  • 5
    Recalcitrant.Rick
    Posted Tuesday, 12 August 2014 at 4:07 pm | Permalink

    Bernard Keane! A man of the “Hard Left” :-) :-) :-)

  • 6
    Scott Grant
    Posted Tuesday, 12 August 2014 at 5:08 pm | Permalink

    I can’t remember the original cause, perhaps Bernard’s previous article, but I remember doing a search on the quote “if you have nothing to hide you have nothing to fear”. Lots of interesting hits. Amongst other things, the argument has apparently been promulgated by none other than Joseph Goebbels, as well as George Orwell in “1984”.

    I quite like the discussion at http://chronicle.com/article/Why-Privacy-Matters-Even-if/127461

  • 7
    The Pav
    Posted Tuesday, 12 August 2014 at 7:01 pm | Permalink

    As to the argument that if you have nothing to hide….

    Looking forward to somebody asking the Minister for Immigration and Torture to fully explain what is happening and that “as there is nothing to hide” then a full and frank disclosure is the way to go. Failure m,eans that he must have something to hide.

    Can’t see the Oz having the integrity to do that tho’ Can you?

  • 8
    The Pav
    Posted Tuesday, 12 August 2014 at 7:09 pm | Permalink

    Just out of curiosity when the IRA was most active and most definitely a terrorist organisation where was
    The call for greater local security by way of invasion of privacy or furyher loss of civil liberties?
    The attempts to stop australioans providing support by either cash of physical participation?

    It would seem that Catholic white terrorists are much safer than Islamic terrists eh?

    The bottomm line that those calling for further encroachments into our liberties is that by doing so we hand the terrorists a victory. They have cvhanged our lifestyle. As hard as it seems the proper response it to maintian our values and not treat thema as a political problem ( which gives them some kind of status) but as a criminal problem. This was the most effective strategy against the IRA , the UDF etc. It hurts short term but succeeds long term. The other way doesn’t solve the problem, alienates the law abiding population witha brain and provides a fertile recruiting ground for further malcontents.

  • 9
    teecha
    Posted Tuesday, 12 August 2014 at 8:22 pm | Permalink

    So I suppose that some hundreds of radicalised individuals returning from jihad in foreign lands do represent a threat but I’ve yet to see a compelling argument as to how that requires data retention on the online activities of the other 99.999999% of the Australian population, or whatever the precise numbers are.

    Perhaps journalists, whistleblowers, malcontents, or just ordinary people who don’t share the prevailing authorities’ political or social or religious or other views could be more malleable as the Panopticon bears down upon them.

    Team Australia - over regulated and under surveillance.

  • 10
    Sailor
    Posted Wednesday, 13 August 2014 at 1:08 am | Permalink

    Thanks,Scott Grant #5, for the link to The Chronicle. That’s a thought-provoking essay. It reinforced my prejudice against our current Gov’t’s idealogues, zealots, & brainless drones. And several earlier ones, including Gillard’s.

    I do hope my similar opinions about my fellow Australian voters’ ability to think are incorrect.

    Time will tell.

  • 11
    JennyWren
    Posted Wednesday, 13 August 2014 at 12:11 pm | Permalink

    Thank also from me Scott Grant, for the link. Very informative and I will use that link for other discussion threads whenever someone trots out the line, If you have nothing to conceal yada yada….

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