In June 2013 Edward Snowden began releasing a large swathe of classified NSA documents, which revealed mass surveillance of US citizens by US intelligence agencies. The ‘Snowden Releases’ were a terrifying insight into just how pervasive the systematic invasion of privacy was, not just in the US, but around the world. The new Metadata Retention Scheme created by the Australian Government is nowhere near the scale or invasiveness of the US system. However, the potential for our legislation to expand its boundaries is large and the lack of transparency associated with warrantless attainment of personal information is concerning.
Despite these damning revelations, many people failed to recognise how these spying programs affected them personally. John Oliver recently demonstrated during an interview with Edward Snowden himself that many Americans aren’t even aware of the issue, let alone care about it. While I won’t borrow from John Oliver’s sketch on Last Week Tonight with John Oliver and try to relate metadata to dick-pic retention, it is interviews like this that make the politics of privacy more tangible. Nor are the Australian metadata laws as likely to reach the levels of the UK Optic Nerve program, where over 1.8 million Yahoo users had their webcam data collected, with a large number containing levels of ‘undesirable nudity’ according to The Guardian report.
Closer to home, and specifically concerning metadata, there has been vocal opposition to the initial government proposal. However, much of that energy dissipated when Labor nominated to make it a bipartisan issue after the inclusion of several amendments to the Liberal’s bill. Amongst the most significant of these amendments was a reduction in the number of departments and groups who could access captured data without a warrant. The original proposal included organisations such as the RSPCA and the Australian Post Office (in case, you know, mail fraud?) among those who could access your metadata. However, Labor and the crossbenchers argued that many of these organisations, if they really needed access to your metadata for their investigations, should at least have to go to the trouble of obtaining a warrant.
Despite the bipartisan support, the amended bill still had vocal opposition from many of the crossbenchers, especially the Greens. Most notable was Senator Scott Ludlam’s unwavering support of privacy. As many have pointed out, it’s not about having something to hide. On a personal level, it’s about people wanting the power to choose what can be released about them. On a wider scale it’s about journalists, unionists (with the worrying nod in the bill towards the Australian Building and Construction Commissioner), whistle-blowers and any others who might fall out of favour with the government, government agencies, or large corporations who should have some guarantee that they cannot be targeted when acting in the public interest. Under the current legislation, journalists will not even be made aware when their metadata is being accessed to try and uncover sources, although a special court will be asked to evaluate whether or not the information is truly in the public interest under a ‘journalistic warrant’. Further, having ‘nothing to hide’ for now doesn’t mean that you won’t in the future. This legislation opens up the precedent for legislators to expand what the government has the right to store and access.
If the metadata wasn’t going to be useful and revealing, no one would collect it. Returning to Edward Snowden: “What you care about is the metadata, because metadata does not lie. People lie on phone calls when they’re involved in real criminal activity. They use code words, they talk around it. You can’t trust what you’re hearing, but you can trust the metadata. That’s the reason metadata is often more intrusive.”
This is a systematic invasion of privacy on behalf of a government, which has demonstrated that it cannot keep private data safe, in fact the Department of Defence has specific guidelines for the inevitable accidental ‘spill’ of confidential information. Let us start with the assumption that I don’t have anything which that I really want to hide from the Government or it’s investigative agencies. Let’s pretend that I am also comfortable with the Government, and and any nominated agencies being able to collect all of this information without a warrant. Last year, an employee charged with looking after the personal details of Barack Obama and the other G20 leaders accidentally emailed them to the Asian Cup Soccer League. That is, a federal employee did not have the relevant training and composure to not leak the details of people much more important than myself, on accident in an email to a large, commercial, sporting competition. Given the rate of cybercrime attacks, and the vulnerability of public sector employees as an IT asset, I want to make sure there are as many technical, legal and political barriers in place between my data and the Government as possible. Even better, I would really rather it not be stored longer than necessary, if at all.
While many companies have already been keeping this information for short periods of time , the new legislation introduces lengthier retention periods, and reduces the barriers needed to access it. No longer are journalists able to guarantee to a source that their identity is private, or even on a need-to-know basis. While Labor did increase the barrier slightly in this case, it is still a direct attack on the identities of whistle-blowers, who will receive limited protection in very specific cases of demonstrable criminal activity or direct policy breaches, and this is made worse when combined with last year’s increased penalties for whistle-blowing activity. Further, there are no special protections in the bill for lawyers and doctors despite the high chance of them handling personal data of a nature which an individual might not want accessed without a warrant. Even then there are no guarantees that the data will be destroyed after two years. While businesses won’t spend money deliberately keeping it, the Government might. Or it might just linger a little past the two years until the storage space is required again. Either way, ‘done’ does not mean ‘gone’.
The second major problem is funding, with estimates being between 188 million and 320 million dollars, with no concrete decision on how much of this will come out of the Government’s budget and how much will be passed onto ISPs (and thus their customers) directly. While I won’t go much further into the politics of cabinet members being ‘good fixers’, this is just another ‘surprise’ the Government wants to save for later. This represents more unnecessary spending on ineffective policies from the Government elected in on the back of promised cuts.
This brings us to the important question of, “could this be effective?” Snowden certainly backs the effectiveness of harnessing metadata, however many other critics are less certain. MPs have been quoted encouraging VPN (Virtual Private Network) use as a way to get around the storage of metadata, as then the ISPs are only storing the fact that you are making a lot of connections to a VPN server(s), rather than going websites x, y, and z before sending a bunch of Skype packets to an IP located at Bazza’s house. They also have the advantage of being widely used by businesses and security conscious individuals for very legitimate purposes making them hard to target legislatively by Government. Although, even this might be under attack with recent moves to amend the Copyright Act not ruling out restrictions on VPN use, at this stage
Finally, I think the work of the Australian Federal Police is important. I accept that Australia could be at risk of potential terrorist threats, particularly with increasing societal and governmental measures to further marginalise and disenfranchise anyone who does not look or sound like the group in charge at the moment. I do not think the solution is to target everyone with an indiscriminate collection of private data using measures that may be circumvented by those actually ‘targeted’ under the law.