As clickbait phrases go, “metadata retention” is down there with “thumbtack manufacture” and only slightly north of “pictures of my beautiful engagement”. Zzz and, indeed, who cares. It’s as boring as the batshit expelled from a boring bat called Kevin on the boring pages of a white paper distributed at a conference on asphalt awareness. Even if you can force yourself to read the boring details of boring metadata, they’re about as intelligible as a streak of fruity guano. No one can tell you what this meaningless thing means. Least of all, the batshit policy’s professional champion, George Brandis.
Our Attorney-General and Minister for the Arts has himself had trouble staying awake when called upon to explain the amendments. “The Australian people are being sleep walked into a system the Attorney-General cannot even articulate,” was how a former police officer described the proposal to ABC Radio. Quite. “Um” was among the interjections Brandis used to evoke the shape of metadata on Sky News last August.
The thing about “metadata” is that, at best, it’s a pseudo-category. At worst, it’s an ignorant falsehood evolved by the Attorney-General’s Department under successive governments to make believe that there is data about data and not just data — your data — itself. The AG would have us trust that all that will be retained is the “wrapper” for our data, or, the envelope that your data comes in and not the letter. But digital information does not behave like the physical mail. We have been assured that certain elements of our data, such as our browsing history, will not be viewed. This does not mean it will not be stored. And it does not mean that the legislation as it stands does not allow for an infinitely extendable definition of “metadata” and its retrieval. This deathly boring thing is whatever anyone wants to say it is. Um.
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Eventually, “um” became the primary response from an electorate drip-fed on bat-poo by a sleepy media rolling over for easy clicks. Why publish the tedious details of a one-size-fits-all warrant that treats every Australian like a criminal suspect when a non-story about a single bowler’s behaviour abroad will provoke a mass orgasm of easy spite? Our news media are eager to shame the law and customs of developing nations. They just ain’t that interested in tearing apart their own.
Crikey’s Bernard Keane is one of the few professional reporters prepared to put his hands repeatedly in the waste of this stinking proposal and sift for solid reason. But it’s more than past time for the nation’s critics, consumers and producers of arts to sort through the crap as well.
The proposed bill will afflict your art. Stay with me, here, and, please, don’t sleepwalk. Well. Not if you don’t want to submit to the conditions for Approved Art. And if you do wish to submit, what are you doing here? Fuck off and enjoy your censored Norman Lindsay nudes and redacted Ulysses idiotically confident that an environment inimical to creative and political expression will stop the bad people. Never has. Never will.
Arts and entertainment professionals and their supporters knew this in 2005. It was then a sedition amendment was proposed as part of a suite of anti-terrorism laws by the Howard government. Large rallies and fundraising events played out across the nation within days of the announcement, and the National Association for Visual Arts fought powerfully and drearily to consult on legislation that would finally exempt art works from the laws in 2010. A decade ago, artists and their patrons fought against criminalisation without a second thought. Now, along with the rest of the population, we shrug and delude ourselves that data retention laws won’t affect me.
If we care at all for the production of creative works, we can no longer afford to be bored by the proposed metadata retention legislation. Nor can we accept the sacrifice of freedom is for our own good. If we don’t count the world’s most profitable distributors of digital copyright material, it’s for nobody’s good. And it won’t, despite what the Prime Minister keeps saying, stop terrorists or child abusers.
So stop snoozing as I explain why this scheme, officially costed at $400 million per year — that’s around twice the cost of funding reductions to the ABC over five years and about four times the annual cuts to federal arts organisations announced in last year’s budget — is not just a waste of money. It’s a waste of creative capital.
After snoring, the most common response to news on metadata is, “I have nothing to worry about because I’ve done nothing wrong”. Well, unless you’ve a photographic memory for case law and crime acts, you really don’t know that. If you have ever had any interest in even mildly transgressive artworks, you probably have done something wrong.
Last year, Melbourne artist Paul Yore narrowly escaped a conviction for his Justin Bieber collages. Under proposed laws, police could request a data set listing the identities of those who attended the exhibition. A trip to a council gallery could result in you being charged with obtaining child pornography. If this seems ludicrous, you might want to consider that current moral panic about child abuse materials have resulted in two recent convictions for the possession of sexualised images of Bart and Lisa Simpson. Sure, this fictional filth is hardly legitimate art. But if we allow bad taste to be a crime, we pave the path to prison for Yore and other artists explicitly critiquing the sexual commodification of children.
And don’t give me “but anything to stop child porn”. It won’t, but we’ll get to that later. For the moment, consider our long history of banning artworks and criminalising creators and consumers. From Piss Christ to Pasolini to the novels of Zola, artworks are treated with more revulsion in Australia than any other Western liberal democracy. Adult consumers of video games were not permitted to legally play items with an R18+ rating until 2012. We were behind the rest of the Western world with this decision as we were with making available literary titles that include Baldwin’s Another Country, Joyce’s Ulysses and ’70s softcore porn film The Stud. In 2013, I Want Your Love, a queer film lauded by the Anglophone world’s major critics, was refused classification. Our time-honoured wowserism peaked with the 2008 exhibition of new Bill Henson works and we would do well to note that the original complainant against the artist, Hetty Johnston, appeared last week with the Prime Minister for a metadata photo op.
In Australia, we classify it, we criminalise it or we complain about it until someone thinks of the children. We have complex censorship laws and a recent tendency, as seen in the Coalition’s sedition laws and the ALP’s absurd clean-feed tantrum, to bolster them. We are fond of quarantining “vice”, even some of our progressive thinkers believe artworks will cause crime, and we have no legislative guarantee for freedom of expression. What we are about to be served is a further guarantee of censorship. To suggest that the diminution of privacy is the diminution of expression is not the extreme blurting of my libertarian arse. It’s a view expressed by the UN’s Special Rapporteur on Freedom of Expression and Opinion:
“The right to privacy is often understood as an essential requirement for the realization of the right to freedom of expression. Undue interference with individuals’ privacy can both directly and indirectly limit the free development and exchange of ideas.”
The amendment proposes that the currently undefined “metadata” — which will include a record of your exact geolocation — be held for a period of two years and be made available to a range of Australian law and intelligence agencies without judicial warrant. And, yes, your information may be subpoenaed by a civil authority, so do enjoy future public disclosures of your private activity in divorce proceedings, copyright violation and compensation claims. With no decent art to hearten you.
Metadata retention is an immense, pricey chore likely to cost small internet service providers (ISP) their business. It will cost the rest of us not only as tax payers but as consumers as we pay for ISPs to comply with the new regulations. So metadata means that we pay more, small ISP businesses go broke, and the child abusers and terrorists Abbott insists we can’t afford to ignore will remain undetected. Metadata retention will not upturn these criminals.
Dark crime happens in the dark. Terrorist conspiracy and criminal pornography do not unfold in the everyday light of the internet. If one is motivated to harm children in the name of pleasure or kill citizens in the name of ideology or faith, one certainly knows how to hide. Tor or a VPN are among the simple prophylaxes against detection. There is no reliable method of tracking this encrypted activity and the minute before there is, pornographers in particular, always at the forefront of internet technology, have devised a new way to hide.
The ineffectiveness of metadata collection as a form of predictive analytics for serious crime is well-known. Again, this is not just me blurting out my libertarian arse but the general opinion of the information technology industry. It is also evidenced in the case of European data retention — now annulled as unconstitutional — where Germany recorded an increase in the crime clearance rate of 0.06%. Of the retention scheme, a German parliamentary report found “the relationship between ends and means is disproportionate”. The marginal increase did not halt crimes of such extreme depravity that anyone thought it was worth the cost or the violation of the human right of privacy.
Brandis has simply asked for “trust” in a government that does not understand or will not listen to advice on the woeful ineffectiveness of its batshit policy. We can’t trust an under-informed AG to make good law and we certainly can’t trust that these laws will won’t criminalise or punish everyday people.
But, we can “trust” that these laws will create hostile conditions for art. Stay with me just a little longer here for the boring conference on batshit asphalt. I know it hurts, but maybe not as much as the dwindling of the culture.
This is not a case against the retrieval of records. Personal data can be currently accessed by agencies, and most of us would agree that those suspected of giving profit to child pornographers or imperilling Australian lives should be surveilled. Get a warrant. But not a general warrant applied to us all.
If a citizen is suspected of conspiring to commit a crime, agencies can and do request these records; some of our larger internet service providers will comply, even without a warrant. In the 2012-13 year, more than 300,000 requests for private data were met, at least one of them by a local council. To argue against the bill is not to argue against the prevention of detection of serious crime through the use of reasonable surveillance. But it is to argue that the terrific expense of retaining all data generated by all Australians for a period of two years is unjustified batshit.
And unethical and useless and a violation of a fundamental human right. And an effective means not of crime prevention but of art prevention in a nation that has long feared cultural expression.
In the early 20th century, Melbourne police regularly raided one of the city’s finest bookstores. In the 1970s and ’80s, the Queensland Police Special Bureau was charged with the work of breaking up punk performances. Last year, artist Paul Yore was arrested and tried on a child pornography charge. Community and juridical disdain for art in this nation has a long, unhealthy history which will only metastasise in the atmosphere of these laws.
“Those with nothing to hide have nothing to fear,” said the AFP’s Assistant Commissioner. You can choose to believe this. You can choose to assuage your doubts about your own guilt and the illiberalism of Australia. But as soon as your mobile device locates you at the wrong gig, the wrong film festival or the wrong gallery, you will have something to hide.
Dark crime happens, as it always has, in dark places. We must not allow this to mean that insubordinate art will never see the light of day.
Metadata retention is boring as batshit. But not nearly so boring as a nation whose culture will be paralysed.
*This article was originally published at Daily Review.