The push for data retention has been coming from the Attorney-General’s Department now for many years. From what we’ve gleaned from Freedom of Information attempts, it started virtually as soon as Labor was elected in 2007, but may have even been pushed by bureaucrats before that. The political cycle, industry leaks about consultation efforts and AGD’s own incompetence and impatience cruelled its campaign — in particular, it could never explain to industry what specific data it wanted retained when it came to online data retention, a problem that hasn’t even been resolved today, as the issue is yet to be finalised despite legislation being introduced into parliament.

AGD has in turn been pushed on data retention by law enforcement and intelligence agencies, who have long complained of the problem of what their US counterparts term “going dark” — losing access to traditional telephone interception capacity and data as communications move online. But the “going dark” argument has always been disingenuous, because agencies aren’t seeking merely to retain the same access to information that they’ve had since telecommunications became widespread in the 1920s, they want to dramatically expand their capacity to monitor citizens by obtaining information about their internet usage. And as the failure of data retention and internet surveillance schemes overseas to improve crime clearance rates or counter-terrorism efficacy shows, “going dark” appears to be a non-issue for on-the-ground law enforcement and intelligence-gathering.

For security agencies, the internet is both a profound threat and a glorious opportunity. As communication shifts onto distributed networks, now usually controlled by private corporations, it has become significantly harder for security agencies to monitor citizens than in the analog, pre-privatisation days when telecommunications was controlled by another branch of government and literal “wiretapping” was straightforward. The ability of citizens to communicate globally and shift large volumes of data around has also made the lives of security agencies more difficult, since one of their jobs is to enable governments to manage information to political advantage (officially approved leaks good, unofficial leaks bad etc). Whereas Daniel Ellsberg was constrained in regard to the Pentagon Paper by the physical fact of grams per square inch, Chelsea Manning and Edward Snowden were relatively unconstrained in the large volume of documents they were able to obtain and distribute.

Data retention is thus truly a war on the internet, launched by government agencies and corporations most threatened by the shift online …”

In short, security agencies now have far less control over how citizens communicate and share information, and are deeply unhappy about it — witness the deep horror with which former ASIO head David Irvine lamented that people could be “radicalised – literally, in their lounge rooms” by “unfettered ideas and information” obtained through the “rampant use of the internet, the democratisation of communication”.

But the internet is also a remarkable opportunity, because we put far more of ourselves online than we ever did on a phone. We work online, we socialise online, we conduct commerce online, we create online communities, we have relationships online, we engage in political activity online. Tapping someone’s phone calls doesn’t give you a fraction of the information monitoring their internet usage provides. Internet surveillance gets security agencies much closer to the treasured goal of total surveillance, in which every citizen can be monitored as necessary, even in real time. That’s the appeal of data retention, because it’s a substantial step toward that goal as we shift to an always-on, always-connected, 24-7 information environment channelled through our smartphones and laptops.

Security agencies aren’t the only ones pushing for data retention, however. As AFP commissioner Andrew Colvin explained to the dismay of Malcolm Turnbull yesterday, data retention is ideal for pursuing “illegal downloaders”. The problem is, the AFP doesn’t currently investigate “illegal downloaders” unless they’re uploading copyright material. If the role of security agencies has traditionally included one of protecting the information elites of governments and corporations, another kind of information elite, the copyright industry, also sees in data retention an opportunity. Data retention will better enable it to pursue downloaders — a responsibility that they have been trying to outsource to taxpayers and other industries now for over a decade.

And this government has made it clear it’s keen to help the copyright industry, composed of multinational corporations like 21st Century Fox, in its agenda to shift the burden of protecting copyright from the cartel itself onto law enforcement and ISPs. The government has already attempted to initiate discussion over a new anti-filesharing scheme, and looks set to cave in to US demands to impose further copyright protections in the Trans-Pacific Partnership. Colvin thus wasn’t misspeaking when he enthusiastically agreed that data retention would enable them to go after Game of Thrones downloaders, he was accurately summing up the current direction of the government.

Data retention is thus truly a war on the internet, launched by government agencies and corporations most threatened by the shift online, whose treasured positions as controllers of traditional information hierarchies are most under threat from “the democratisation of communication”.

Peter Fray

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