The Attorney-General had a difficult task when he squeezed into the tiny Sky News studio yesterday afternoon to discuss the government’s data retention proposal. The Prime Minister had already caused confusion by saying an internet user’s browsing history would be included under the proposal — a dramatic widening of data retention from the model proposed by Labor, which had been confined to the type of metadata retained under the now-defunct European Union data retention directive. Near lunchtime, the Prime Minister’s Office had clarified that browsing history wouldn’t be included. But mid-afternoon, The Guardian’s Lenore Taylor reported that officials had said it would be included. Brandis would have to clarify a somewhat technical issue without appearing to obviously contradict the Prime Minister or his office.
Brandis was, shall we say, unsuccessful in the interview. It was a car wreck of an exchange, and not because David Speers subjected Brandis to a ferocious grilling. He just asked him to clarify if browsing history would be included and declined to be fobbed off until it was established. A visibly rattled Brandis at times could only stare at his interlocutor and, after a prolonged period of excruciating hesitancy, admit that website addresses would be recorded, but not specific pages within a site. As a result, what started off as a technical issue that was probably of limited interest to the mainstream media had become front-page news.
As Stilgherrian explained in Crikey yesterday, the distinctions between metadata and content data, to the extent that they exist, are a complex issue. But whether browsing history is included isn’t. It’s a threshold issue, one that was grappled with by the previous government, the Attorney-General’s Department and the members of the Joint Committee on Intelligence and Security, who devoted an entire chapter to data retention, including a lengthy analysis of how to define metadata. Remember, Brandis was a member of that committee and very active in that inquiry. Indeed, Brandis signed off on its recommendation that any data retention scheme “should apply only to meta-data and exclude content … internet browsing data should be explicitly excluded”. The model he is now proposing goes beyond that, and beyond the scheme that ASIO head David Irvine has argued for.
“If the cabinet and the national security committee had a considered discussion about imposing data retention, why are its senior figures so fundamentally confused about what data is?”
One of the problems is Brandis himself, a man with a hypertrophied estimation of his own talent and political judgment. This is the man who singlehandedly killed off the government’s commitment to amending the Racial Discrimination Act with his “people have the right to be bigots” quip, which shifted the entire focus of that debate from s.18C and its impact on free speech to the idea of giving licence to bigotry. Yesterday was another demonstration of his political ineptitude.
But in this case greater blame should be attached to Brandis’ staff, in particular his chief of staff, Paul O’Sullivan. O’Sullivan is a very experienced public servant, diplomat and former head of ASIO. He has remarkably impressive credentials for a ministerial COS, but he lacks political experience, given his sole stint as a ministerial adviser was as foreign policy adviser in John Howard’s office. A good COS must be across both policy and politics, and must be aware of their minister’s strengths and weaknesses and plan accordingly. As a former chief spy, O’Sullivan is surely across the technical issues around metadata, but manifestly failed to ensure his minister was properly briefed on the issue of the day, and had some workable talking points, before he went on television to discuss it.
The obvious question in all this is: if the cabinet and the national security committee had a considered discussion about imposing data retention, why are its senior figures so fundamentally confused about what data is? Perhaps the government has been forced to move more quickly than it wished to. Data retention isn’t in the second tranche of national security legislation and is still being developed with telcos and ISPs (which must be sick to death of being consulted about the issue). In the hastily prepared media release for the announcement of the national security reforms (there’s a repeated paragraph), data retention isn’t even mentioned. But the Telegraph’s Simon Benson revealed the scheme well ahead of the government’s announcement on Tuesday, meaning there was no chance it wouldn’t be the focus of attention.
Those inclined to conspiracy theories might also wonder if the inclusion of browsing history isn’t part of an ambit claim to be abandoned by the government in the spirit of compromise and “getting the balance right” between privacy and security when the matter comes before the Senate.
The inclusion of browsing history is of course a huge threat to privacy. But the real problems with data retention relate to how it empowers governments and corporations to pursue whistleblowers, politicians, journalists and activists who want to hold them to account. Dumping browsing history won’t change that.