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Aug 12, 2014

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.

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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.

Bernard Keane — Politics Editor

Bernard Keane

Politics Editor

Bernard Keane is Crikey’s political editor. Before that he was Crikey’s Canberra press gallery correspondent, covering politics, national security and economics.

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