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Mar 18, 2014

AGD returns to data retention, wants Twitter, Facebook interception powers

The Attorney-General's Department, chastened by its previous experience, wants to consult again on data retention -- but also has Twitter and Facebook in its sights.

Bernard Keane — Politics Editor

Bernard Keane

Politics Editor

The Attorney-General’s Department has relaunched its campaign for a mandatory data retention regime but has flagged it wants to avoid the mistakes of the Rudd and Gillard era by consulting with both industry and privacy advocates before proceeding. However, it has also flagged expanding telecommunications interception powers to social media companies such as Twitter and Facebook and renewed its push to create a criminal offence for refusing to decrypt information seized by police.

In a letter to the Senate Committee on Legal and Constitutional Affairs, AGD secretary Roger Wilkins has confirmed his department has undertaken a variety of work on data retention since the election, after Wilkins told Greens Senator Scott Ludlam at Senate estimates in February he didn’t know if any work had been done. The work includes briefings for Attorney-General George Brandis (including question time briefs) and follow-up work, including work with state and territory agencies, on last year’s report by the Joint Committee on Intelligence and Security. The JCIS report considered a range of reforms to law enforcement and intelligence-gathering powers, including in telecommunications, and refused to endorse a mandatory data retention regime.

The department has also provided an extensive submission covering similar ground to the Legal and Constitutional Affairs References Committee’s inquiry into the Telecommunications (Interception and Access) Act, initiated by Ludlam in December. On mandatory data retention, the department told the committee:

“… further exploration of options is necessary and that detailed consultation needs to occur with key stakeholders, including the  telecommunications industry and privacy advocates before providing detailed advice to Government to support any decision on this topic.”

AGD’s previous attempt to establish a scheme under Kevin Rudd involved secret consultation with industry and an attempt to rush a scheme through cabinet before the 2010 election. Under Julia Gillard, the department suggested the process be recommenced with public consultation, but was rebuffed by the government until then-attorney-general Nicola Roxon included data retention in the reforms referred to JCIS in 2012. This time, it appears, AGD at least wants to bring non-industry stakeholders into a consultation process, although it has not flagged public consultation.

The department also tells the committee it supports reducing the number of agencies with the power to obtain telecommunications data from service providers — that list currently includes local government, regulatory agencies and even NGOs like the RSPCA — as an alternative to requiring a warrant to obtain data from service providers. It also proposes that in some cases agencies be prevented from accessing not only “content data” as opposed to telecommunications data (a distinction AGD has previously argued for), but “traffic data” that provides information about location and duration of communications. “Account-holder data” may be all that is needed in some cases, AGD says — seemingly an effort to address concerns that telecommunications data, or metadata, in fact can provide far richer information about someone than the content of a single phone call.

“The proposal creates the bizarre prospect of AGD attempting to regulate Twitter, Facebook and other social media …”

To be fair to AGD, the submission is superior to the discussion paper it presented to JCIS, which was savaged by committee members like John Faulkner and which Wilkins admitted wasn’t up to scratch. That paper didn’t even mention data retention in any detail, nor did it offer a definition of what data should be retained, an error that Roxon was left to clean up later. That’s not to say the submission is perfect — there’s the slightly unpleasant use of the murder of Jill Meagher and the arrest and conviction of her killer without mentioning their names as justification for the importance of telecommunications data. And the statement “[t]errorists in Australia use the internet to plan attacks and receive training from international terrorist groups” is evidenced by a reference to the Howard government’s hysterical 2004 terrorism white paper, a document so bad even the Lowy Institute criticised it.

However, as with data retention, the submission goes into more detail about proposals that were at best elliptical, or more accurately entirely nebulous, in the JCIS paper. Chief among these is a proposal to bring “ancillary service providers” like Twitter and Facebook into both the Australian telecommunications privacy protection framework and the “industry assistance framework” that provides for telecommunications interception. AGD says:

“The Department’s preliminary assessment is that the comprehensive revision of the TIA Act may provide a range of opportunities to modernise the industry assistance framework, including ensuring that the scope of the framework is fit-for-purpose and appropriate for the modern telecommunications environment — in particular, by ensuring that the framework applies to ancillary service providers … exploring models for interception capability obligations that reduce the existing regulatory burden on carriers and carriage service providers, and mitigate the regulatory burden for newly-regulated ancillary service providers.”

The proposal creates the bizarre prospect of AGD attempting to regulate Twitter, Facebook and other social media both to protect Australians’ privacy and to establish the mechanism for agencies to breach it, while law enforcement and intelligence agencies in the AG’s and other portfolios participate in the “Five Eyes” mass surveillance programs revealed by Edward Snowden that systematically target such companies, often without their knowledge or co-operation.

The department is also clearer that it wants to be able to force companies, including ancillary services providers, to decrypt information obtained by agencies that is encrypted — although it wouldn’t be a criminal offence not to co-operate — and to make it a criminal offence for individuals to refuse to co-operate in decryption, a proposal that was vaguely described in the JCIS paper and then narrowly construed by Roxon in another of her efforts at damage control. However, the proposal raises the prospect of AGD attempting to force Tor administrators or foreign virtual private network providers to decrypt information — a problematic prospect without intergovernmental co-operation and useless in any event for encryption that uses temporary keys unknown to administrators.

And for social media companies, already facing a government effort to force them into an internet censorship scheme on the pretext of “cyberbullying”, all of this represents a new front on gathering efforts to strengthen surveillance.

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7 thoughts on “AGD returns to data retention, wants Twitter, Facebook interception powers

  1. klewso

    They could announce another inquiry and stack it to suit their preferred outcome, again?

  2. Bill Hilliger

    Oh dear! The cut the red and green tape coalition government is introducing more regulatory red tape.

  3. Peter Bayley

    At least the ridiculous red herring that these powers are all needed to “Fight Terrorism” has finally been discarded. We KNOW, from Snowden,that information these powers help extract finds its way to big corporations and is used for unfair commercial advantages. Brandis, through his atrocious East Timor high jinks is a known offender in this area – But they’ll win nothing. As soon as trust is gone, people will quit the compromised services and new, more-robust alternatives will emerge.

  4. Brendan Jones

    All this creates a chilling effect, where citizens are reluctant to criticise the government.

    It silences whistleblowers, who risk persecution by the AFP if they report government crime or corruption.

    It discourages people from talking to journalists, whose sources can be easily identified. It allows corrupt public servants to keep a tab on whistleblowers or journalists investigating them.

    It discourages citizens from criticising the government; Anonymous speech is the only way for people to criticise powerful figures without exposing themselevs for retribution.

    It allows corrupt public servants to engage in commercial espionage advantaging government enterprises and party donors.

    It discourages people from working for the public service; Consider that public servant Michael Banerji was sacked for anonymously criticising government policy. Law firm Herbert Smith Freehills agrees with the government: “Being a public affairs officer for the Department, I think if you want to express your views perhaps you should find another job” So only people that agree with the major parties are entitled to government jobs?

    The US takes the more enlightened view: “The general legal theory is that the public’s interest in how public dollars are spent and public safety decisions are made is very strong, and public employees are in a very good position to address those public interests.”

    But compare the US position to Australia where the National Gallery threatened employees with 2 years jail if they blew the whistle on mismanagement or whistleblower Allan Kessing was persecuted by the AFP for allegedly reporting Customs corruption the government ignored for 10 years. Senator Xenophon asked: “How many Australians have overdosed on narcotics as a result of corrupt customs officials allowing those drugs to be brought into the country. How many Australians have been injured or killed as a result of weapons being brought into the country as a result of corrupt Customs officials?”

    Supposedly we must give up our privacy for our security. Benjamin Franklin said “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”

    What’s so hypocritical here is both the Labor and Liberal parties tolerate crime and corruption by the Australian Public Service:

    Intrusive surveillance is an abuse of power, and was in fact the trigger for the US Revolutionary War:

    Ralph Borsodi nails it: What we call a government is after all nothing but a group of individuals, who, by a variety of sanctions, have acquired the power to govern their fellows. The sanctions range from the fraud of divine right to that of sheer conquest; from the imbecility of hereditary privilege to the irrationality of counting voters. [Ed: or getting a job in the Australian Public Service!] In most cases the extent to which these sanctions produce capable legislators, judges, and administrators will not bear critical examination. Nominally, government exists and functions for the public. Actually it exists and functions for the benefit of those who have in one of these absurd ways acquired power to govern. It is accepted mainly because of the sheer inertia of great masses of people. Ostensibly, of course, it is accepted because it confers a sufficiency of visible benefits upon society to make the officials who operate it tolerated in spite of the selfish and idiotic exercise of the powers conferred upon them.”

    I’d much prefer the Australian Public Service gets out of our lives, and is cut back to the bone. It’s an inherently criminal enterprise.

    Albert Jay Nock: The State’s criminality is nothing new and nothing to be wondered at. It began when the first predatory group of men clustered together and formed the State, and it will continue as long as the State exists in the world, because the State is fundamentally an anti-social institution, fundamentally criminal. The idea that the State originated to serve any kind of social purpose is completely unhistorical. It originated in conquest and confiscation—that is to say, in crime. Like all predatory or parasitic institutions, its first instinct is that of self-preservation. All its enterprises are directed first towards preserving its own life, and, second, towards increasing its own power and enlarging the scope of its own activity. For the sake of this it will, and regularly does, commit any crime which circumstances make expedient.

  5. AR

    PB has nailed it that the real danger is less spooks playing silly bugger Bond but the routine use of the conglomerated gathering of data to inform business and commercial control first of stuff then people, via their demand for more stuff, to balance out the excess from which they already suffer.
    As BIT coin recently showed, as a sort of book-keeping version of Stalin’s axiom, “it’s not the votes that count but the count of the votes” so it doesn’t matter where wealth is, it is who controls the transmission of it – or not as in the case of Wikileaks or whoever the current bete noire of the crumbling West happens to be.
    Talk of freezing the international assets of Russian kleptocrats will send shudders through the churn rooms of London & Zurich.

  6. Dogs breakfast

    Wow, to Peter Bayley and in particular Brendan Jones.

    The only way that democracy will protect itself in this great new technological regime is for all information that isn’t gathered with personal written consent will have to be destroyed by default, with exceptions actually written into law.

    At the moment, it is being handled the other way around, which is that all information can be maintained unless specifically prohibited, and that there is a class of data that in fact must be kept by certain companies for handing over to the ‘authorities’.

    It is a total turnaround from the principles of democracy. We are no more free than Winston in 1984.

  7. Dogs breakfast

    Oh yes, on the issue of bit coin, I wouldn’t want to be part of it at the moment unless it builds up an unstoppable head of steam.

    The emergence of such a currency on a global scale would suddenly free up everyone, and currencies would no longer be in the control of sovereign countries, and if you thought that countries fought hard during the world wars, see how far they will go to protect the current banking and finance system.

    I can’t see how they could allow that war to be lost.