An Open Letter to Australia’s Politicians in Opposition to the Proposed Metadata Retention Laws
I recently wrote a rather long article on the potential dangers of new metadata retention laws to the fabric of our society and the functioning of our democracy. There is no issue I feel more passionate about in our society today, as it affects literally every one of us. We are witnessing the creation of the greatest weapon of oppression in the history of man, to quote Edward Snowden, and as individuals, citizens of a democracy, and human beings, we owe it to ourselves and each other to do what little we can to stall and hopefully stop this legislation from passing into law.
To that end, I’ve prepared an open letter to the politicians of this country outlining the failings of the legislation and other relevant information around metadata collection and the relation thereof to human rights.
Please send this to as many members of parliament as you can, and please share this template on your social media walls and any political groups you may be a part of. The more people that know that this is happening and that recognise that they are personally implicated in it, the more chance we have of stopping this draconian imposition on the freedoms of all Australians, rich and poor, powerless and powerful, male and female, old and young.
With your help, I sincerely believe we can make a positive difference.
[EDIT] Seeing as the bill has now passed the senate, I’ve updated the text of the letter to reflect that fact. The letter is now designed to encourage revision and reversal of the bill, rather than simply a vote against it.
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.
[Politician’s name],
I am writing to you to express my deep and sincere concern with regards to the proposed Metadata Retention legislation that the government passed on the 27th of March 2015.
This legislation represents 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 its 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.
You are not exempt or immune from this by virtue of your position in society.
This affects each and every one of us.
Even supporters of the legislation don’t buy into the idea, 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.
I implore you, with the utmost sincerity and urgency, to do whatever is within your power to oppose this legislation, as it now stands, 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.
Sincerely,
______
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/
For the sender of this email: you can find the contact addresses of your parliamentarians at these links:
http://www.aph.gov.au/Senators_and_Members/Members
http://www.aph.gov.au/~/media/03%20Senators%20and%20Members/32%20Members/Lists/MemList.pdf
For more information on how to protect your privacy online, head over to our community project: Online Privacy: A Basic Guide
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Mick
Return to home pageMalcolm Turnbull, October 2012: Free at last! Or freedom lost? Liberty in the digital age: 2012 Alfred Deakin Lecture
While the purported intent is that only metadata – data about data – will be available to law enforcement, security and intelligence agencies, there is no explanation of how metadata will be distinguished from data (the two are often commingled, as in the ‘subject’ line of emails), why both would not be readily available once a message has been handed over and decrypted, and indeed how readily in an IP world it is possible to keep a record of the time, date, size, sender, receiver and possibly subject of an email without also retaining the contents.
Nor has there been an explanation of what costs and benefits have been estimated for this sweeping and intrusive new power, how these were arrived at, what (if any) cost was ascribed to its chilling effect on free speech, and whether any gains in national security or law enforcement asserted as justification for the changes will be monitored and verified should they be enacted.
ASIO’s submission to the parliamentary inquiry considering the discussion paper argues that the type of information it seeks is not very different from what it has hitherto been able to obtain from telcos who retain details of telephone calls (but not the content) for the purpose of billing. In an IP world where charging is done on the basis of total bandwidth utilization, ASIO argues these details are not required by the telcos or web companies and so they can be deleted.
The German Federal Constitutional Court has recently struck down a similar data retention law noting that “meta-data” may be used to draw conclusions about not simply the content of the messages, but the social and political affiliations, personal preferences, inclinations and weaknesses of the individual concerned.[15]
Leaving aside the central issue of the right to privacy, there are formidable practical objections. The carriers, including Telstra, have argued that the cost of complying with a new data retention regime would be very considerable with the consequence of higher charges for their customers.
And what is to happen with data stored offshore? Google hosts much, if not most, of the relevant data for Australians. But none of it is hosted in Australia. Much of our voice and video calls occur now over IP services, like Skype or Google Chat. Is their customer metadata stored in Australia? Almost certainly not.
Google currently permanently deletes emails or Youtube videos from their server once the customer deletes it. Search logs are rendered anonymous after nine months. It would be utterly impractical, and possibly unlawful, for Google to discriminate against customers from Australia and treat them differently from any others.
And finally – 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?
Without wanting to pre-empt the conclusions of the Parliamentary Committee, I must record my very grave misgivings about the proposal. It seems to be heading in precisely the wrong direction. Surely as we reflect on the consequences of the digital shift from a default of forgetting to one of perpetual memory we should be seeking to restore as far as possible the individual’s right not simply to their privacy but to having the right to delete that which they have created in the same way as can be done in the analogue world.
http://www.malcolmturnbull.com.au/media/free-at-last-or-freedom-lost-liberty-in-the-digital-age-2012-alfred-deakin
Thanks Kaye Lee, it’s saddening to see Turnbull take such an about face with regards to this issue, and even worse is the untethered and ungrounded popular support for him amongst people my age, who seem to regard him as being a panacea to the ills of the Liberal party, almost as “one of us”.
Frankly it smacks of good PR to me.
Malcolm’s principles have always been for sale but how he can hope to get away with it is beyond me. He argues one thing in opposition and then the diametrically opposed view in government.
Thanks for the letter… have sent to all Labor members in House of Reps. Received a response from Terri Butler trying to justify Labor’s plan to go along with the legislation…
“Those of us in the opposition are faced with a choice: to do nothing and allow the current regime to continue to operate largely unchecked, or to try to reach agreement with the government for more security and scrutiny. Those appear to be the only two choices available in the present parliament…
I’d prefer that some action be taken to regulate the existing and extensive warrant-less access…
This is a government bill. We have worked to improve it, and we’ve won some significant concessions. Without that work, everyone from the Qld police to the RSPCA would continue to have largely unregulated access to people’s metadata. It seems to me to have been the responsible course to seek those improvements rather than to allow the present situation to continue as it had been for many years.”
Terri Butler
Adam D, how are we supposed to believe that we’re being represented by these people when they don’t even have the backbone to strongly stand by their public?
I mean, “we have worked to improve it”? An ethically responsible opposition would have shut the parliament down until the bill was scrapped altogether.
Perhaps I have missed something. Terri did not mention data retention for two years. She talks about warrantless data – as far as I know the only concession has been for them to have to get a warrant to look at journalist’s data. They can still look at the source’s (or anyone else’s) data without a warrant.
“Senator Ludlam said he would be more comfortable if warrants were required for every instance in which authorities sought access to metadata.”
Brandis says “It’s about ensuring our security and law enforcement agencies continue to have access to metadata, which is critical in nearly all terrorism and serious criminal investigations.”
They already DO. Two-year old metadata won’t stop a terrorist attack. It might help identify who was involved but overseas experience indicates otherwise. Metadata retention has not lead to more successful prosecutions.
Telstra has warned the upfront costs of building new systems would be “significant” and it wants taxpayer compensation.
Mr Abbott has previously acknowledged that storing the information required would likely cost $400 million a year – you can bet it will be more since we will be funding it.
Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014
Introduced to parliament on October 30 and redrafted on the advice of the Joint Committee on Intelligence and Security (which tabled its report on February 27). The legislation will:
•Require telecommunications companies to retain customer’s phone and computer meta-data for 2 years
•Define which types of data must be retained, such as phone numbers, length of phone calls, email addresses and the time a message was sent, but not the content of phone calls or emails and explicity exclude internet browsing
•Detail which agencies are able to access the data
•Give securtiy agencies access to the data when they can make a case that it is “reasonably necessary” to an investigation
•Still require security agencies to obtain a warrant before accessing the actual content of messages or conversations
•Introduce an independent oversight mechanism, allowing the Commonwealth Ombudsman access to agency records, in a bid to boost privacy protections
•Give the Parliamentary Joint Committee on Intelligence and Security oversight of the use of metadata by the AFP and ASIO
•The Government is negotiating with telcos about who will pay for the new system
http://www.abc.net.au/news/2015-03-17/metadata-retention-crossbenchers-journalists-union-slam-deal/6324106
I hope they have more detail than that but I fear not. Without seeing the actual amendment detail they would be mad to vote for it. Those were recommendations…they need to see the legislation.
Here’s the complete response from Terri Butler…
Thanks so much for your email.
Telcos have been giving access to telecommunications data without warrants for many years.
You probably know there were about 500,000 incidents of warrant-less access to stored metadata last year, up from approx 330,000 the preceding year.
Those of us in the opposition are faced with a choice: to do nothing and allow the current regime to continue to operate largely unchecked, or to try to reach agreement with the government for more security and scrutiny. Those appear to be the only two choices available in the present parliament.
As you may also know I have expressed concerns about the legislation.
My submission on this issue, to the parliamentary committee, is on my website: http://www.terributlermp.com/submission_to_the_data_retention_bill_inquiry
I have also published an opinion piece: http://www.chifley.org.au/rush-complex-reality-telecommunications-data-retention/
Since I wrote those pieces we have received the committee report: http://www.aph.gov.au/~/media/02%20Parliamentary%20Business/24%20Committees/244%20Joint%20Committees/PJCIS/DataRetention2014/FinalReport_27February2015.pdf/
We have since received government amendments which make significant concessions. And yesterday afternoon we received a further significant concession, in relation to protection for journalists.
I am concerned about the lack of regulation in the current regime.
The bill and amendments would impose greater regulation and oversight of those incidents of warrant-less oversight, which would be desirable.
For example the bill and amendments would:
– require security and encryption,
– make sure the privacy act will apply,
– require more detailed reporting,
– put limits on use in civil proceedings,
– limit the agencies that can obtain access,
– increase the requirement for there to be reasonable grounds, and for justification and proportionality, and
– provide for much greater oversight by the Ombudsman.
Each of those measures represents an improvement on the broad and largely unregulated data retention and access scheme that has been in place since 1979. I’d prefer that some action be taken to regulate the existing and extensive warrant-less access.
This is a government bill. We have worked to improve it, and we’ve won some significant concessions. Without that work, everyone from the Qld police to the RSPCA would continue to have largely unregulated access to people’s metadata. It seems to me to have been the responsible course to seek those improvements rather than to allow the present situation to continue as it had been for many years.
Terri Butler
Back in the 70’s, if the Company I worked for, wanted a new address, for a non payer of rent, if that person was anywhere on the government books, state or federal, a brown envelope would have the new address within days.
Me, I have no problems, storing any data at all. Nothing to hide, and I fear no one.
Notice to the Labor Party. You support this shit ……..you loose hundreds of thousands of votes & if your precious Power means so much to you you will have to form a coalition to defeat the coalition because that is the only way they got into power…. You all make me sick. START BY REPRESENTING THE PEOPLE OF AUSTRALIA. IF YOU CAN’T BRING YOUR MASSIVE EGOES TO DO THAT THEN PISS OFF.
Agree, Rafe.
You expect no better from the mad uncle Tories, but Labor, better informed and educated, you expect exponentially more from. It’s the disappointment with their timidity, time and time again..
As I’ve just said elsewhere, “Labor, GROW SOME, on issues of principle”.
This is petty fascism almost on a par with the so called socialist government in France under Hollande with his wish to virtually ban dissent. We need a Peoples Government not suits who represent the National Security State.
Rafe Falkiner … I second that motion.
And, may I say, very eloquently put !
Mark,
“Me, I have no problems, storing any data at all. Nothing to hide, and I fear no one.”
The Dutch Government’s thoroughness in collecting personal religious and racial information for the purpose of their census enabled the Nazis to murder a much higher percentage (73%) of Holland’s Jews than those of Belgium (40%) or France (25%).
Not that that could ever happen again……right?
At least one of the links provided was from the ABC and mentioned Abbott trying to cancel a committee meeting for later in the week into the issue.
Do others find this news disturbing?
For legislation as intrusive and potentially damaging to democracy through injury done a free fifth estate,let alone invasion of ordinarypeople’s privacy, I’d have thought no stone would be left unturned, to ensure no harm comes of such changes
A case of the right leading the right. Would be good if all the “right” factions split-off from their parties, form a new RWNJ party to make it easier for the electorate know who the real terrorists are.
The whole process makes us suspects in every crime that can be committed yet the security agencies are yet to identify a single example of stopping a crime by use of metadata.
This is about the TPP and managing illegal downloads by average Joe’s so Australia can suck up to the USA.
Our government and the current opposition are worthless and this makes the case for 30 independents in the house.
Spot on Sir ScotchMistery:
More chance of dying of cancer: being run over: being taken by a shark etc. than being attacked by terrorists. Orwell gave us fair warning. The US will willingly transfer their determination to vilify whistle blowers onto the rest of us through their dystopian TPP and Bank of International Settlement. This is one of the the most undemocratic and corrupt organisation in the world. They make terrorist look like beginners in the graft and corruption market place. Remember terrorism comes in many forms often cloaked in false respectability and political double talk.
How many of the GFC financial terrorists went to jail? Well it happens to be zilch, three fifths of five eights, bugger all. Now you see there is apparent legitimate, and obviously acceptable, financial terrorism going on leading to the hardship and suffering of millions of people in which the powers that be just turn their backs and snigger in condescension at the lot of the miserable masses.
These vampire squid, so elegantly exposed by Matt Taibbi, then invade countries selling arms to their enemies then scream out we need to go to war to protect democracy. Seems more like corporate fascism to me. Democracy vanished long ago.
All the way with USA corporate fascisms brought to you by GOP and Democrats. Be careful Australia what exactly you are wishing for.
Given this sordid history it pays to be skeptical of left and right these days though Labor did have the wherewithal to get us through the GFC.
Since then its been all the way down the austerity plug hole brought to you by those doyens of moral probity the L-NP financial terrorists.
You Royal Administrator-ship think I got sucked out of existence. May have found a home in with the spam man.
Found it
Exactly why do both major parties want to do this? Clearly the terrorism/pedophilia thing is a furphy, so who gains what?
It is hugely unpopular with voters, with good reason. It is very expensive. It will be abused exponentially in future years.
Is it just to allow Hollywood to go after Australian downloaders of movies/music? Surely not. People have been recording off television for decades and copying music for even longer.
Bravo to the Greens for providing conscionable opposition. You will get my vote hereafter. I’ve had enough of our rubbish major parties.
Kaye Lee,
“The Dutch Government’s thoroughness in collecting personal…………………
I didn’t know that, thanks for the information. What is your source for those facts, so I can have a good read.
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Mark,
It came from Malcolm Turnbull’s Alfred Deakin Lecture that he gave when he was opposed to metadata retention
http://www.malcolmturnbull.com.au/media/free-at-last-or-freedom-lost-liberty-in-the-digital-age-2012-alfred-deakin
He quotes his source as “Delete” 2009 by Viktor Mayer-Schonberger p.141
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All done.
Senators:
senator.lastname AT aph.gov.au
Representatives.
firstname.lastname.mp AT aph.gov.au
Thanks Rob Marsh. I sent this letter to Senator Brandis and Russell Broadbent, Member for McMillan.
A couple more on the subject.
“Remember too, that you, the average internet user, will pay for this data to be retained. ISPs and telecommunications providers will have to store the data and pay part of the storage cost; that part will be passed on to the consumer.
How do we benefit? No country has found that data retention helps to any significant extent in solving crimes, or tracking down undesirables. Else, why doesn’t the US government do it?”
http://www.itwire.com/opinion-and-analysis/open-sauce/67314-data-retention-time-for-labor-to-grow-a-pair
“Labor MPs used the first substantive parliamentary ‘debate’ on data retention to congratulate themselves on their hard work in ensuring that the government’s legislation will be passed.”
http://www.computerworld.com.au/article/570640/labor-gives-itself-good-back-patting-over-data-retention-bill/
Onya Labor. Nothing like standing up for our freedoms and liberties eh? (sarc)
Harquebus,
ditto, ditto, ditto. (I don’t even bother wondering, if Labor will speak out in defence of us anymore.)
Jennifer.
I am sick to death of Labor being the first to erode or the first to stand behind those that do erode our freedoms and liberties. Lives lost in sacrifice so that we could have them in the first place.
Small minded and short sighted the lot of them.
Hi all ,
Firstly being an older generation person I don’t agree with these new laws being passed. I’m not a very tech savvy person so at the time of signing a phone plan for an iPhone I had no idea about meta data retention and (what it could be used for) at no time was this ever mentioned whilst I was being signed up.
So my question about this is,
would I be right in assuming that the metadata retention laws and associated costs that will be passed on to the consumer would constitute a change in contract conditions signed prior to the date the laws were passed.
According to the terms and conditions of my contract , any changes made to the contract previously agreed upon by myself, my telco must notify me in writing of these new changes and offer me the chance to renew and or cancel my current contract. Considering that I agreed to a set monthly cost and that I didn’t agree to the data retention or the extra fees that may be associated with it.
Surely they are breaking or changing the conditions of the existing contract if they think that I or anyone else on a existing contract for that matter will just pay more than what the agreed plan is ?
Also there is no mention of metadata in the contract I retained either.
Anyway just a thought ?
PS. No I don’t have anything to hide I’m just an ordinary bloke whose sick and tired of every company and now our government wanting to keep my private data. F-OFF !!!!
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