Another great article from AIMN regular, Rob Marsh. I’m copying the open letter in full here, to give it exposure.
Stupid ideological, business-driven, paranoid government.
They want Big Brother to watch us closely.
An Open Letter to the Politicians of Australia on the Potential Adverse Effects of Proposed Metadata Retention Legislation on Human Rights and the Functioning of Our Democracy
This letter contains many references to the Report of the Inquiry into Potential Reforms of Australia’s National Security Legislation, where there is a number or text enclosed in brackets like so: (5.17), refer to the appropriate section of the report.
I am writing to you to express my deep and sincere concern with regards to the proposed Metadata Retention legislation that the government wishes to pass by the 27th of March 2015.
This legislation represents, contrary to the claims of those with vested interests in seeing the legislation pass, a grave threat to the right to privacy, freedom of speech and association that is fundamental to a well-functioning democracy.
You may not be aware of what the legislation addresses, or what the “telecommunications data” it refers to actually entails.
Nicola Roxon, in a statement to the Attorney General, describes telecommunications data as: “Telecommunications data is information about the process of communication, as distinct from its content. It includes information about the identity of the sending and receiving parties and related subscriber details, account identifying information collected by the telecommunications carrier or ISP to establish the account, and information such as the time and date of the communication, its duration, location and type of communication. (5.7)
The proposed legislation, based on the definitions above, would give the Australian government unprecedented access to nearly every aspect of the online activity of it’s citizens, and the ability to infer a disturbingly accurate “pattern of life” from the collected data.
For example, you may have your cellphone’s GPS services enabled to use Google Maps. That data, in conjunction with your phone records and timestamps on the above data could clue in a security agency as to your most likely whereabouts on any given day. This poses an enormous risk to freedom of the press, as governments could use these capabilities to track journalists and their sources to frequented meeting places, limiting concerned parties’ abilities to bring sensitive information to the public for democratic review.
“The database will contain every page they accessed – every article they’ve read on a newspaper site, any online political activity, any purchases on ebay, books bought from amazon, Facebook pages visited etc.” – Ian Quick
In the words of former NSA/CIA Director Michael Hayden:
“We kill people based on metadata.”
Fears about the above stated powers and the implications thereof have been echoed by several EU countries.
The Romanian Court, with regards to local metadata retention, held that a “continuous legal obligation” to retain all traffic data for six months was incompatible with the rights to privacy and freedom of expression. (5.26)
In Germany, the Constitutional Court described metadata retention as a “serious restriction of the right to privacy” and stated that a “retention period of six months [was] at the upper limit of what should be considered proportionate”. (5.27)
The Czech Constitutional Court, in analogous statements, described misgivings about the potential abuses of these powers: “Individual citizens had insufficient guarantees against possible abuses of power by public authorities.” (5.28)
The EU Court of Justice found that the 2006 European Data Retention Directive violated citizens “fundamental rights to respect for private life and to the protection of personal data”.
With such strident international condemnation, it seems to go without saying that any committee responsible for review of similar legislation would be given express access to details of the proposed changes and sufficient resources to complete a sincere and detailed examination of the material. Oddly enough, these criteria were not met: “Having commenced the inquiry at the beginning of July 2012, the Committee was asked to report if at all possible by the end of the calendar year. This afforded the Committee a highly compressed and unachievable time frame of less than six months to examine what is an extensive list of potential reforms, some of which are far reaching.” (Introduction, Page 3)
It seems that the government also failed to provide the committee with the relevant draft legislation, leaving those involved to rely on speculation and inference rather than an appraisal of the raw data: “The Government sought the Committee’s views on a mandatory data retention regime. The Committee did not have access to draft legislation. Furthermore, the inadequate description of data retention in the terms of reference and discussion paper also impaired both the public discussion and the Committee’s consideration of the data retention issue.” (1.29)
The question of how efficacious metadata retention is in solving and preventing crime is a raging debate.
Electronic Freedom Australia noted that it was “highly questionable” whether data retention would aid in the investigation of terrorism, organised crime or other serious illegal activities:
“It is worth noting that determined criminals will have little difficulty disguising or anonymising their communications. There are many relatively simple and effective tools available that allow for the protection of communications from surveillance.” (5.167)
This is an excellent point. The proposed legislation is no secret. Those in the criminal world will have no doubt heard of the potential for their activities to be monitored and have likely already taken steps to anonymise their online behaviour. Even in the event that the scope of the metadata retention reforms is so broad that it includes tools for opening encrypted chats and messaging services, it is not unlikely that tech savvy individuals on the wrong side of the law will be developing tools to combat this unwanted intrusion, rendering the legislation effectively useless in dealing with its raison d’être: combating terrorism and serious crime.
An unintended consequence of the introduction of metadata retention could be the opposite of what it is designed to achieve: a progressive opacification of the internet, with more and more users turning to encrypted browsing and communication, thereby shrinking the usable pool of data.
“Why do we imagine that the criminals of the greatest concern to our security agencies will not be able to use any of numerous available means to anonymise their communications or indeed choose new services that are not captured by legislated data retention rules?”
This quote from Communications Minister Macolm Turnbull, in addition to his recently revealed use of the messaging app Wickr, which provides a platform for anyone to send and receive self-deleting encrypted messages, seems to indicate that the reforms are likely to bring about little change in the positive ability of law enforcement agencies to stop criminal activity.
Add to this comments made by Blueprints for Free Speech, indicating that “there is no evidence to suggest data retention would assist with the prevention of crime or terrorism. A 2011 study of Germany’s Data Retention Directive found it had no impact on either the effectiveness of criminal investigation or the crime rate. Further, the study specifically found that countries without data retention laws are not more vulnerable to crime.”
Make no bones about it, metadata retention is mass surveillance. It can be used to form a dataset, a pattern of life indicating your movements, interests, affiliations and beliefs. You will be paying for this intrusion of privacy through rises in service bills, a kind of “tele screen tax” if you will. You will be at a higher risk of identity theft through the creation of ‘honeypots’ of data, irresistible to organised criminals and foreign actors. Your basic rights to privacy, to freedom of speech, to live as a dignified human person, are being infringed upon in ways that do not preclude a broadening of the scope of these abuses.
Even the supporters of the legislation don’t buy into their own rhetoric, with members of the Liberal party using Wickr on a daily basis, showing the world that privacy is of the utmost importance even to those who adamantly maintain that it isn’t.
With unanimous condemnation from leading human rights groups around the world, with a public backlash on a scale almost never witnessed, with the potential for so much to go horribly wrong, we simply must put a stop to this.
Tony Abbott has made statements that he wants a parliamentary inquiry into the legislation to be scrapped. I think it’s our responsibility as members of our democracy to ask why anyone would want a piece of legislation with so many potential avenues for abuse to pass without appropriate scrutiny.
I implore you, with the utmost sincerity and urgency, to do whatever is within your power to oppose this legislation at the very least until it is put before an independent NGO and reviewed in depth, with all the aspects of the legislation made available for public review and scrutiny.
Thank you for your time and your consideration, I hope that we, together, can make history and bring our society forward into an age of social egalitarianism, where the ideals of freedom of speech and thought, freedom of association and transparency of government are enshrined as they once were, as the foundations of a working democracy.
For more information on the legislation you can refer to the Report of the Inquiry into Potential Reforms of Australia’s National Security Legislation, which you can find here: http://www.aph.gov.au/parliamentary_business/committees/house_of_representatives_committees?url=pjcis/nsl2012/report.htm
An independent summary/opinion piece on the legislation can be found here: https://wideeyedandhopefullywild.wordpress.com/2015/03/05/metadata-and-you/