Mar 2, 2015

Data retention — great news for criminals and foreign companies

Data retention will be great for criminals and foreign companies providing encrypted communications -- but bad for consumers.

Bernard Keane — Politics editor

Bernard Keane

Politics editor

There are two clear winners from Labor's decision to cave in to Tony Abbott's terrorism and child porn hysteria and wave through Australia's biggest-ever mass surveillance scheme: criminals and overseas communications providers. The copyright cartel might count itself a winner as well, although the extent to which that is true now rests with the Attorney-General's Department and the government's legislative drafters. As Crikey has explained ad nauseam, data retention won't work to improve crime clearance rates. We know that because in several countries overseas both data retention and more far-reaching surveillance schemes have been demonstrated not to help the cause of fighting crime and terrorism. But why will crooks and terrorists benefit from data retention? Data retention will generate tens of petabytes of data. The problem with more data available to authorities is that, inevitably, it will lead to more "false positives" -- potential leads for investigators and counter-terrorism agencies that require investigation, but which turn out to be dead ends (although, in one case, not before an academic spent three weeks behind bars after his family was held at gunpoint). For a resource-constrained agency, investigations that lead nowhere are a misallocation of precious time, money and staff that could be better directed at pursuing real perpetrators. Just ask the Danish police, who complained of being overwhelmed with information from the Danish data retention scheme. The other big winners will be foreign companies that offer encryption, anonymisation and ephemeral message services. VPN companies in particular must be delighted with the imposition of data retention, since it will encourage further mass market interest in Australia in their services as Australians decide it's time they went dark (not to mention enabling them to access US-only media services). But services providers who offer encryption will also benefit -- Google, for example, is moving to offer end-to-end encryption on Gmail. Ephemeral message apps are also growing rapidly in popularity (politicians have started using Wickr to message each other, while imposing data retention on the rest of us -- and if Luddite politicians are using it, you think criminals aren't?). How do we know this shift to more encryption will happen? Because it already has, according to the Public Service's scopophiliacs, the AGD, who told JCIS that the problem of "[losing] reliable access to the content of communications" has worsened since "the Snowden disclosures". Data retention will simply encourage more people to hide their personal data from -- literally and figuratively -- unwarranted surveillance, thereby making the problem data retention is intended to address worse not better. Of course, that's not a problem for security agencies, because as per AGD's invocation of the growing use of encryption as justification for data retention, that will merely provide the basis for further demands for surveillance powers. Data retention will not be the last attempt to expand mass surveillance in Australia; agencies will demand, and get, more and more power to monitor us. As for the copyright cartel, data retention should prove a winner for them, because it will provide a trove of data that they can access using discovery and subpoena powers in civil litigation to pursue file-sharers foolish enough not to use a VPN. It will also be used by the Australian Federal Police, which lately has been at pains to insist it would not be used to go after file-sharers, but which can't undo the damage caused by the honesty of AFP Commissioner Andrew Colvin himself, who admitted in October "illegal downloads, piracy, cybercrimes, cybersecurity. All of these matters, our ability to investigate them is absolutely pinned on our ability to retrieve and use metadata." There's a fly in that particular ointment. The committee recommended that data retained solely for the purposes of the data retention scheme not be accessible to civil litigants, such as the copyright cartel. However, it suggested the Attorney-General be given a regulation-making power to provide for exceptions to that prohibition. Given his track record in bending over backwards for the copyright cartel, no one seriously expects that George Brandis would refuse a request from his good friends at News Corp or Sony to enable access to the vast trove of data. As for consumers -- well, we're the big losers. We'll have to pay a surveillance tax for the privilege of being spied on by our own government, through both taxes and higher ISP costs to fund this vast scheme. And when -- when is the correct word, not if -- our data is stolen by hackers, there's not even a guarantee we'll even be told about it -- there's no mandatory data breach notification system in Australia, though JCIS wants one legislated sometime this year. Welcome to the world of mass surveillance -- a world where those with nothing to hide have plenty to fear, and criminals and terrorists can feel more secure than ever.

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14 thoughts on “Data retention — great news for criminals and foreign companies

  1. Laurie Patton

    The most disappointing aspect of the data retention debate is how little serious attention it has received in the mainstream media. Apart from Crikey and some of them more high profile tech journos there has been virtually no detailed analysis of the “deep flaws” in the Bill. Flaws which the Internet Society, obviously well placed to comment, has had trouble getting anyone to write about. This is surprising when you consider that journalists will be the first to experience collateral damage from the legislation. It will be back to meeting confidential sources in playgrounds and car parks late at night.

  2. Eve Kano

    Is government really so stupid or this a cover to obscure another reason for knowing what everybody says and thinks?

  3. Ed Black

    Not just hackers, but also tempting info for the thousands of ISP employees. Will they see what a bank is about to announce and buy shares before the public know. You can bank on it – staff access for their own purposes is common in the US government.

    If I decide to send bad info to a friend, I’ll mail him/her a letter. They don’t open these…. yet.

  4. Ed Black

    By the way, there are plenty of free VPNs, run by academic bodies,around the world.

  5. Neutral

    You can email your ‘content’ as well as your metadata to Brandis here:

  6. Andu Goodly

    @Eve Kano.

    Spot on!..the obvious ramifications of excessive mass surveillance are commercial and political. We all know this, but what is not often mentioned by journalists, including BK, who has done a magnificent exposing this political intrigue, is a far more deeper sinister plot within a plot.

    Due to encryption and VPN’s etc etc, the futility of mass surveillance in reaching outcomes is well known.

    But, every single piece of information collected by mass surveillance on every single individual on the planet is stored on a central master database. This information is then used to profile us to see where we fit in the coming NWO. Anything else is just pure commentary or cloaking.

  7. Peter Kemp

    Conversations I have with my clients have legal privilege, but on the mobile phone that metadata of the call will be recorded and that I cannot accept. When I email my client, the metadata of the subject line eg ‘Draft of No Bill Application’ (application for DPP to withdraw matter) will be recorded. That also I cannot accept.

    Who is to say the NSW or Commonwealth DPP won’t have access to that data? Who is to say they wouldn’t use that data to found the application of a bullshit search warrant on my office by telling an issuing Justice for the warrant they reasonably suspect my office has documements/data showing the criminality of my client, based on the metadata between me and my client, (but they won’t tell the issuing justice about that of course) ?

    When I email my client, the time, the email address of my client and mine, the IP addresses of me and/or my client, the subject header etc is:


    The next step will be that the contents of emails must be stored. Any idea that the Federalistas will stop at metadata is probably a delusion.

    (Anybody BTW with the technical ability to help me set up an end to end encrypted email service for lawyers in Australia, I'm interested, you can find me on the Law Soc Website NSW)

    The special weakness in the legislation is not just journalists (and it's really bad there) it is much wider. Can we forget the lawyer's office raided not so long ago with a warrant for matters pertaining to representation of the government of East Timor?

    In that case the AFP took documents on the search warrant executed publicly that was subject to legal privilege, what are they (Brandis, the AFP and other like minded Commonwealth bullies and legal thugs) going to be doing IN THE DARK?

    Even with warrants, we saw how the Federalistas and Howard totally fucked up with the matter of Haneef, with data retention, GOD HELP US

  8. AR

    This boon to the copyright idustry might be the one thing that saves Abbotrocious from further denigration by mudorc’s minions.
    A point no-one seems to have picked up, despite the well founded fear & loathing of mass surveillance using the assumption that the information is accurate – as the ex head of HSA said “we kill people based on meta data”.
    Anyoe who has ever suffered from mistaken identity by a credit agency knows the fun & futility of trying to have false information removed.
    This will be writ large indeed when the government is buried in bullshit.

  9. GideonPolya

    To put the Lib-Lab (Coalition and Labor Right) terror hysteria into perspective, only ONE (1) Australian has EVER been killed in Australia by a Muslim-origin non-state terrorist (in the Sydney Siege, December 2014).

    Indeed only 7 Australians have been killed by non-state terrorists in Australia in the last 37 years (3 in the Australian Intelligence-linked 1978 Sydney Hilton Bombing; 2 in the 1980 Sydney Turkish Consulate shooting, 1 in the 2001 Melbourne fertility clinic shooting, and 1 in the 2014 Sydney Siege). The average Australian population in that period was 18.2 million so that the “empirical annual probability of being killed by a terrorist in Australia has been (7/37 years)/18.2 million = 10.4 per billion or about 1 in 100 million or about 10 times less likely than being killed by a shark (see Gideon Polya, “Australian State Terrorism – Zero Australian Terrorism Deaths, 1 Million Preventable Australian Deaths & 10 Million Muslims Killed By US Alliance Since 9-11”, Countercurrents, 23 September, 2014: ).

    In contrast, 81,000 Australians die preventably each year under successive Lib-Lab governments which have committed to the fiscal perversion of a $125 billion long-term accrual cost for the endless, post-9/11 US War on Terror (initiated by the US Government’s 9-11 false flag operation) during which 14 years 1 Australian was killed by a terrorist within Australia (Sydney, 2014) , 53,000 Indigenous Australians died avoidably, 1.1 million Australians died preventably and 10 million Muslims were killed through violence or violently-imposed deprivation (see Gideon Polya, “Horrendous Cost For Australia Of US War On Terror”, Countercurrents, 14 October, 2012: and “Muslim Holocaust Muslim Genocide”; ).

    Numerate, literate and science-informed Australians will utterly reject Lib-Lab terror hysteria, vote 1 Green and put the Coalition last.

  10. morebento

    Peter Kemp you might like to look at GPG encryption for your email. It’s a bit of hassle but can work very well. There are also other companies in the USA providing a service such as these!home

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