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Feb 5, 2015

Officials admit: we can't justify data retention

Inquiries into data retention show that there is no evidence it will do what the government claims it will do.

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Senator Scott Ludlam asks questions about data retention during a recent Senate committee hearing

In a moment of downright Nixonian desperation, Prime Minister Tony Abbott this morning sought to dramatically raise the stakes on national security against Labor, coming out to aggressively demand that Labor back his mass surveillance data retention scheme, more than three weeks before the Joint Committee on Intelligence and Security is due to report on it. Abbott called a media conference this morning to declare, standing next to Australian Federal Police Commissioner Andrew Colvin, that metadata was “absolutely vital” to the police, who were faced with a “burning platform” that was sending them blind.

Abbott wants his scheme legislated by mid-March, allowing less than eight sitting days for Parliament to consider the biggest mass surveillance scheme in Australian history. And that’s despite crucial details such as cost and the data to be retained, remaining unresolved — indeed, government officials confirmed earlier this week that even if they had settled on the cost of the scheme, Parliament might not be told of what it will be before it is legislated — a staggering breach of the most basic legislative processes. And in a letter leaked to The Australian by the Prime Minister’s Office, Abbott also demanded that Opposition Leader Bill Shorten fall into line on the proposed data retention bill.

But the timing is a little problematic for Abbott, because in the last week, we have seen just how little basis there is for Abbott and Colvin’s claims.

You’d have thought the burden of proof for the effectiveness of mass surveillance would have lain with advocates, and particularly with the bureaucrats of the Attorney-General’s Department, who have been pushing to keep a copy of every Australian’s digital lives since 2008. It’s a burden they have signally failed to carry.

As Crikey has repeatedly noted, there is no — as in, literally, no — evidence that mass surveillance, whether of simple data retention or of collection of web browsing history or industrial-scale root-and-branch NSA surveillance, has had any benefit in relation to counter-terrorism 0r law enforcement. Zip, nought, nothing, despite being used in a variety of European countries, the United States and the UK (I summarised the dearth of evidence in this private submission). Indeed, the terrorist attacks in France and the Sydney siege, which Abbott this morning invoked as justification for data retention, were both perpetrated by men well known to security agencies — at various points they had been under active monitoring. Both cases are reminiscent of the Boston bombings, the perpetrators of which the FBI had been warned about by foreign intelligence agencies.

At the data retention bill inquiry last week, some members of the Joint Committee on Intelligence and Security (the Labor members of the committee and South Australian Liberal David Fawcett are the only ones on that committee doing their job properly) put police representatives on the spot to provide evidence of the benefits to criminal investigation of data retention. In response, there was much verbiage from the uniforms about why they couldn’t actually provide any evidence of that. A representative of the NSW Police Force — currently imploding over the mass surveillance of its own officers carried out allegedly in breach of legislated warrant requirements by senior officers — told JCIS “we do not keep a central repository of the effectiveness of metadata”, then reeled off some statistics on crime clearance rates, followed by “we are not saying they were directly attributable, but there was some value, some effectiveness or some evidence given in those court proceedings in relation to metadata”. That’s as good as it got for actual evidence about the effectiveness of data retention in fighting and solving crime — and that’s from a police force that is alleged to illegally bug its own officers, let alone ordinary citizens.

Oddly enough, the lack of evidence echoes the European experience, where efforts to find evidence that data retention is useful for addressing serious crime, have come to naught.

“They can’t produce any data that contradicts the evidence from other countries that data retention doesn’t work …”

In a different committee earlier this week, Greens Senator Scott Ludlam, who is almost single-handedly running a Senate inquiry into the telecommunications access regime, put similar questions to AGD officials, including Anna Harmer, now famous for giving evidence to committees like she’s just drunk half a dozen coffees and enrolled at auctioneer school. Somewhat slowed to a mere 400 words a minute by Ludlam’s preference for asking hard questions rather than bowling up full tosses like several members of JCIS, Harmer and her minions were similarly unable to to furnish any evidence either that a requirement that security agencies obtain a warrant to access metadata — as exists in many European countries — would cause law enforcement to “grind to halt”, as claimed by the spooks and the uniforms, or that data retention actually helped.

“The evidence in support of data retention is not cast in terms of clearance rates,” Harmer machine-gunned at Ludlam. That is, not merely are advocates of mass surveillance unable to furnish any verifiable evidence that it has worked in the past, they say we won’t be able to tell if it has worked in the future, either — data retention is a policy that can never be objectively assessed to determine whether it works. “I could refer you to some of the evidence of the law enforcement agencies …” Harmer suggested, going on to explain that it was very difficult to identify any quantifiable impact from police being able to access your personal metadata. The whole exchange can be found here, and stick to the very end for the absolutely filthy look on the AGD bureaucrat’s face when Ludlam calls it “anecdote-based policy” and complains about the lack of any evidence from them.

What also emerged in Ludlam’s hearings was the extent to which the online dimension (as opposed to the phone dimension) of data retention would be easy to circumvent. The discussion didn’t focus on tools like VPNs or Tor, but rather, on the number of services that people could use and, under the current bill, never be identified for their internet usage, in public libraries and facilities that provide free wi-fi (like Parliament House), and via overseas service providers like Gmail, social media and IP-based messaging apps.

None of this is new — it’s in the bill, and the limitations of the reach of the online aspect of the proposed legislation were discussed months ago. But it’s a further reminder of why data retention doesn’t work and has had no demonstrated impact on crime clearance rates, because any criminal or terrorist with half a brain can easily circumvent the online aspect of data retention either by using Tor or a VPN, or using the increasing suite of services like Whatsapp that use end-to-end encryption, or just using their device in a place with free public wi-fi.

And when data retention spurs the further uptake of encryption and anonymisation by Australians who don’t want their government, corporations and hackers to obtain their online histories, security agencies and the shinybum scopophiliacs of AGD will demand yet more surveillance powers, just as they’re justifying data retention now by blaming Edward Snowden for encouraging people to start encrypting.

Surveillance state advocates can’t furnish any evidence that data retention works, or that law enforcement would “grind to a halt” if security agencies were asked to get a warrant when they accessed someone’s metadata. They can’t produce any data that contradicts the evidence from other countries that data retention doesn’t work and that law enforcement agencies cope just fine with external authorisation requirements. And it’s easy to see why — when it comes to the online aspect of the bill, evading it is child’s play.

Tomorrow: some examples of how mass surveillance could hurt you – whether you’re a private citizen, a business owner, a journalist or a politician.

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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23 comments

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23 thoughts on “Officials admit: we can’t justify data retention

  1. AR

    All the salient points are covered here by the article and our worthy, perspicacious commenters so I need only add a warning about the glibly blathered ‘without a warrant’.
    For the record, how many warrants are ever refused? None would be an overestimate, it is a figleaf anyway since the spooks do not need warrants and the NSW cops show the usual respect for specific prohibition.

  2. Luke Hellboy

    Data rentention and control is important to the Lindt Cafe incident… mainly to monitor leaking of information about how many hostages were killed by police bullets

  3. CML

    Zeke @ #14 – You are so right. It is all about the TPP and giving away our sovereignty to the USA, UK and corporations.
    This lot have to be stopped. Where’s the ‘Sir GG’ when we need him!!!

  4. Bohemian

    People with things they want to hide will always find a way around the surveillance leaving people with nothing to hide to get spied on and intimidated. That is called tyranny folks.
    Criminals don’t register their firearms and they don’t turn in their guns in moratoria or confiscations.. only those who have been police cleared and are known to the authorities as owners.
    The leaders of this present government smack of desperation and it’s a desperation that is frightening like “what would they be prepared to do to cling to power?”
    I think the public sense it. Tony Windsor the former independent in the hung parliament said that after Tony Abbott apparently begged him to let him be PM back in the day, that he could not bring himself to support him. I believe the public sees through it which is why all of this police state rubbish will ensure the even more rapid demise of this government. We are not that type of people frankly. We absorb most peoples given time and we all get along.
    Worse, it mirrors the exact script being run in the US and the UK like who is managing this narrative?
    So why do we need all the control systems that these guys are pushing so hard for? Why not take the real criminals off the streets and the public is protected. Surely all this flash new surveillance equipment can do that! But it never seems to does it. Have you asked yourself why that is? Scary stuff under the guise of protecting the public is going on and it seems so transparent to me it is laughable.
    The terrorist boogie man went quiet for a couple of years but thanks to our present leader he is back in full kit. Nutcases and adventure seekers are being given a stage they would otherwise not enjoy and afforded a status among their peers they could never have dreamed for. Just a sham. Poor statesmanship to boot. Take away western funding either direct or indirect, and terrorism would be a toothless tiger. But don’t get me started on that ISIS crap!

  5. John Taylor

    Norman, being facile is a real skill – you ought use it more wisely. As is patently obvious from BK’s article and the evidence in the inquiry, in answer to your question:

    “I was wondering why there is NO case for improving Australia’s ability to retain data which could assist in protecting against ever more sophisticated potential terrorist attacks.”

    Because NO case exists. Not. A. Sausage.

    Sorry old bean.

  6. Buddy

    The only ones it would benefit would be governments to track down whistleblowers, by say, referring leaks to the AFP .. Because let’s face it, that’s what this is really about ..

  7. drsmithy

    So if data retention is not to manage crime, why is it so desperately needed?

    Makes it much, much easier to prosecute copyright infringement and find people with the wrong political views.

  8. The Cleaning Lady

    Scott Ludlam is a bloody legend.

    Thanks, Bernard. Excellent work as usual. “Shinybum scopophiliacs” FTW!

  9. Marion Wilson

    Today Abbott gave the hostage situation in Sydney and the Paris attack on Charlie as the prime reasons driving data retention in Australia – making it imperative and urgent. I don’t see it. I understand that the hostage taker in Sydney was mentally disturbed and I’m not aware that he communicated with any subversive person who encouraged or facilitated his action. In that situation how would data retention have produced information that would have protected anybody? There is much to fear from politicians and unaccountable organisations having access to personal communications. Abuse would certainly occur.

  10. Zeke

    Denis Vente @ 1

    I believe the main reason for pushing through this data retention scheme has to do with the TPP, the free trade agreement with the USA. The Australian government is coming under increased pressure from the US Government (representing the Movie Studios and the recording industry) to provide access to the data of Australians so that the movie and recording industry can sue any Australian who has the temerity to download torrents.

    This is all about copyright violation. Terrorism is just the excuse, and an extremely weak one at that.

  11. Norman Hanscombe

    Bernard, you certainly don’t lack doting followers, but for those not part of that category, I was wondering why there is NO case for improving Australia’s ability to retain data which could assist in protecting against ever more sophisticated potential terrorist attacks.
    Please explain.

  12. Denis Vente

    >Data retention is really a side show.

    Or perhaps not.

    It may be an important supplement to the vast amounts of communication data already picked up by the 5 Eyes.

    I suspect it is important to track who has certain knowledge.

  13. Electric Lardyland

    Yes, z a, and it’s also probably another example, in the long list of examples, of why right wing governments rarely live up to their rhetoric of slashing government spending. On the one hand, they arrive in office all fired up by their mantra of “government is the problem”, and thus start slashing things like health, education, welfare and infrastructure spending. But on the other hand, they all seem to have something of a fetish toward anyone in an uniform and an overwhelming need to wrap themselves in the flag. So consequently, they then go about spending more than they saved, on things like police officers, prisons, the armed forces and security agencies.
    An interesting and typical example of this came out during the recent Qld election, when local ABC host, Steve Austin, was discussing Napoleon Newman’s claim that he had employed 800 new police officers. Hearing this discussion prompted the president of the Qld Police Union, Ian Leavers, to call the program. A somewhat irritated Leavers explained that, well, while they had employed 800 extra officers, the government had also sacked the equivalent number of administrative staff. So what this meant was, that since the record keeping still needed to be done, the police were now spending more time doing the paperwork. This meant two things: firstly, since clerical staff are more efficient than police when it comes to paperwork, these tasks now took much longer, and secondly, since trained police officers are more highly paid than clerical staff, it was now costing more to do the paperwork. And that was not counting the cost of redundancies, the cost of training, etc. It also meant the total amount of time that police spent catching criminals, patrolling roads, etc, was just that little bit down.
    But hey, at least the LNP got to claim that they were employing more police, and if you looked at it without a moment’s analysis, that they were also cutting government spending.

  14. James O'Neill

    Bernard, actually having a rational justification for the data retention policy is not the intention. What we have seen since at least September 2001 is the government of whichever country using “terror events” as justification for ever more powers over the citizenry. As we now know that many of those events were stage managed by the governments themselves (Gladio B alive and well) the end game is not too difficult to envisage.

    Governments are terrified of an informed citizenry because its undermines the perpetuation of their system of rule. As we have seen, this involves, inter alia, perpetual wars for perpetual profit for the 1%. The US is only a more extreme manifestation of this. Exposing this racket threatens their privileged position. It is of course not unique. 19th and 20th century history is littered with periodic scare campaigns against the threat du jour; false flag operations to justify the latest war; and so on. Thanks to alternative sources of information an ever greater percentage of the population is no longer fooled by these tactics. Data retention is really a side show. The real objective is to control the flow of information which they thought they had achieved with concentration of media ownership and cross ownership of those corporations with the military-industrial hegemony. The internet briefly interrupted that, but just watch this space. That is surely the real target.

  15. klewso

    Isn’t this “Direct Distraction”?

  16. zut alors

    We clearly recall Abbott & Co’s lively song & dance routine when there was no business plan for Rudd’s NBN. Didn’t the then Opposition go to town on that one. Now there’s no costing on their data retention scheme- &, should there be costings available in time, parliamentarians may not be made aware of them before voting for the legislation. Priceless. This is like blind signing a contract to buy a house without having actually inspected it & without being told the price.

    At least at the conclusion of Rudd’s no-business-plan-NBN the nation would’ve enjoyed the advantages of an up to date fibre optic network – whereas at the end of Abbott’s no-business-plan data retention the nation will have a mountain of expensive stored data which is of no proven use.

    Tony’s at it again, folks. But can he top the Prince Philip knighthood?

  17. MJPC

    If the AFP is involved it has to be concerning detection of plastic swords or similar.

  18. klewso

    Like watching the Simpson’s isn’t it? Now we’ve got “Sideshow Boob”?

  19. Laurie Patton

    The Internet Society appeared before the PJCIS last week and told the committee members that the drafting of the Data Retention Bill is flawed, it will not achieve its stated aims and it is a risk to our privacy protection rights. They were so obviously taken aback by what we said, on the basis of the extensive technical knowledge provided by our members, that they asked us for a supplementary (confidential) submission. They’ll get it tomorrow. It seems inconceivable that the PJCIS will not have some very critical things to say to the Government. At a function this morning Parliamentary Secretary, Paul Fletcher, was asked about the Bill. His interesting response was essentially that Governments often listen to Parliamentary committees so we should wait for their report. Perhaps there are a few in the Government beginning to get the message?

  20. GF50

    Love your work BK!!

  21. Grant Muston

    I would guess its because Murdoch is pushing the Libs to bring it in to crack down on people using Torrents to download Movies/TV show ect. instead of signing up to FOXTEL.In the end Murdoch wins and the public lose.

  22. Coaltopia

    Disgraceful but utterly unsurprising bullying from Abbott on yet another topic he finds himself without scientific evidence.

  23. Denis Vente

    So if data retention is not to manage crime, why is it so desperately needed?

    Is there a fear of uprisings?

    Is there some secret that must not be known so that every persons communications must be monitored?

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