Meta commentary

As Monday tripped into Tuesday this week, Australia wandered blindly into an age of mass surveillance. Under the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015, a record of all communications and internet activity will be kept for a mandatory period of two years, to be accessed without warrant by a select group of agencies.

The act is as lumpy as its title, and the implementation lumpier still. But the heart of it is not terribly complicated. Edward Snowden, the whistleblower behind the revelation of mass surveillance by the US National Security Agency, put it this way: “Beginning today, if you are Australian, everything you do online is being tracked, stored, and retained for two years.”

On Twitter, Snowden posed a question. His answer was more persuasive than any argument yet made for the legislation that was clumsily introduced to the parliament last year and sluggardly debated by both sides of the house. “Ask yourself: at every point in history, who suffers the most from unjustified surveillance?” Snowden wrote. “It is not the privileged, but the vulnerable. Surveillance is not about safety, it’s about power. It’s about control.”

When Labor attorney-general Nicola Roxon proposed an almost identical scheme in 2012, Malcolm Turnbull said it seemed “to be heading in precisely the wrong direction”. It was, and it remains that way.

The attorney-general’s department maintains that there is no need for warrants in accessing metadata. It falsely claims that it is not kicking down doors. “Warrants are typically reserved for the most intrusive powers, such as the power to use force to enter a home, to intercept phone calls, or to arrest a person. Many powers, including access to metadata, simply do not rise to that level.”

But the effect on society of laws that pretend to be tackling serious crime but could easily be used to target whistleblowers or activists is chilling. It is not enough to say the government would not do this, as ministers have argued: they already are. The thuggish hunt for the sources of stories revealing conditions in offshore detention camps is but one example.

“Metadata is the basic building block in nearly every counterterrorism, counterespionage and organised and major crime investigation,” a spokeswoman for the attorney-general told Fairfax this week. “It is also essential for child abuse and child pornography offences that are frequently carried out online.”

All this is true. And yet none of it explains why the legislation allows agencies to act without warrants, to remove the courts as a buffer to check excess and protect the rights of citizens.

In March, Turnbull gave a bizarre interview to David Speers, which remains his most sensible commentary on the legislation to date. He made a quick list of services that can circumvent the act: Skype, Viber, WhatsApp, Wickr, Threema, Signal, Telegrammer, FaceTime. “There’s a gazillion of them.”

Having offered a grocery list, he explained the function: “All that the telco can see, insofar as it can see anything, is that my device has had a connection with the Skype server or the WhatsApp server; it doesn’t see anything happening with you. There are always ways for people to get around things, but of course a lot of people don’t, and that’s why I’ve always said the data retention laws, the use of metadata, is not a silver bullet. It’s not a 100 per cent guarantee. It is one tool in many tools.”

There are many good reasons for retaining metadata, and for using it in law enforcement. But there are no good reasons for taking the courts out of this process. Turnbull is right about one thing: there are ways around the legislation. Until we can be satisfied that the information is not being misused to target whistleblowers and curtail freedoms, these alternative services should be favoured.

The public failed to effectively oppose these laws before they were passed. It is now the public’s responsibility to see that they at least skirt them. Complacency is too dangerous an option.

This article was first published in the print edition of The Saturday Paper on October 17, 2015 as "Meta commentary".

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