Australia's data-retention debate hits Derpcon Zero

Forget the distraction about journalists and warrants. Government spin and opposition incompetence have just gone off the scale.

When it comes to mandatory telecommunications data retention, there's one matter on which I completely agree with Australia's favourite Attorney-General Senator George Brandis QC.

"This has never been about journalists," Brandis told ABC Radio's AM program on Tuesday. "[T]his was never about journalists, this was about law enforcement and national security."

Exactly.

As ZDNet has reported, the government has agreed to Labor's request that law-enforcement agencies will need a warrant before they can access a journalist's stored communications data.

(I refuse to call it "metadata", because that's just spin -- that "metadata" is some magical, separate thing that you needn't trouble yourself with. No, it's all data, and it's all about you, no matter who collected it. As lawyer Leanne O'Donnell tweeted, "'Metadata' has absolutely no legal meaning in this Bill or the existing legislation.")

Brandis said that the warrant changes are unnecessary, in part because the cops going after a journalist's sources would be an "unlikely" event. That's a silly argument. Airline staff talk us through the safety procedures, even though an aviation emergency is "unlikely". Office towers have fire extinguishers, even though fires are "unlikely". Protecting us from unlikely, high-risk events is precisely the point of safeguards. But we'll let that slide.

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We'll also let slide the dispute over how to characterise the numbers. The Australian Federal Police (AFP) said it has accessed journalists' stored data 13 times in the past 18 months, which it describes as being "rare". The journalists' union, the Media and Entertainment Arts Alliance (MEAA), describes this as "repeatedly". Choose your spin, choose your emotive word.

No, the real reason that the change is unnecessary is that it's pointless.

As high-profile network engineer Mark Newtown tweeted, "Doesn't matter if [we] have a warrant requirement for journalists if you can still hoover up their sources without a warrant."

If you know the leak must've come from a certain government department, you just pull the stored data for all the employees to see who's communicated with the journalist.

Brandis has been spinning hard this week. "I don't think many people in the community would say that journalists should be entirely immune from criminal law investigation," he told AM. Uh huh. If Brandis thinks that the need for police to get a warrant constitutes immunity from criminal investigation, then I'd suggest that his understanding of criminal investigation is a bit thin.

As for the rest of Brandis' arguments, well, it's just a continuation of his used-car salesmanship tactics, utterly misrepresenting the facts of what's actually in the proposed legislation.

"[A]ll this Bill does is that is says to the telcos and the ISPs, you are obliged to retain that metadata for two years. That's all it does. This is a very prosaic Bill about business records. Just as the tax laws say to companies they are obliged to keep their business records for tax purposes for five years, this Bill says to the telcos and ISPs you're obliged to keep your billing records effectively for two years," Brandis told SkyNews later on Tuesday.

This simply isn't true.

The entire purpose of the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 is to require telcos and ISPs to create and keep records for which they have no ongoing business purpose, or no business purpose at all. If they did have a business purpose, they'd already be keeping them for tax compliance.

Specifically, recording which internet protocol (IP) address was assigned to a particular customer at a particular point in time has precisely zero business use.

"There is an express requirement in the Bill, set out in proposed section 187A(6), to create data when the service provider does not already capture data that falls within the yet-to-be-finalised data set," O'Donnell wrote.

"The proposed data set includes categories of data that some providers do not currently retain and have no business need to retain for the two-year period," she wrote. "Have the attorney-general and Communications Minister [Malcolm Turnbull] not read the Bill?"

Now there's a question, and there's only three possible scenarios here. One, these two senior ministers haven't even read the Bill -- in which case they're not doing their jobs. Two, they have read the Bill, but don't understand it -- in which case they're incompetent. Or three, they've read and understood the Bill, but are prepared to straight-up lie about it -- which says something very specific about their character as humans.

Perhaps we shouldn't be too surprised by spin or even lies coming from the mouths of politicians. But this week, the derp has gone off the scale.

On Tuesday night, debate on the data-retention Bill resumed in the House of Representatives. Labor MPs, including former Attorney-General Mark Dreyfus QC, lined up to sing the Bill's praises -- even though they hadn't seen the text of the amendment regarding journalists and warrants.

In fact, MPs haven't seen any of the more than 30 amendments that will have to be made, now that the government has adopted the recommendations of the Parliamentary Joint Committee on Intelligence and Security (PJCIS).

Now, the entire job of parliament is to scrutinise, amend, and pass legislation. But MPs spent more than two hours discussing legislation that none of them had read -- because it hasn't even been written yet. Opposition MPs, including Dreyfus and Tim Watts, even commended it to the house.

Excellent work, ladies and gentlemen. Taxpayers' money well spent.

Actually that's slightly unfair. According to Watts, while the amendment regarding journalists is still being drafted, Labor MPs have reviewed the other amendments resulting from the PJCIS process. "The government hasn't circulated them yet, problematically, but we didn't speak on the bill without seeing them," he tweeted.

However ZDNet understands that Greens MP Adam Bandt and independent Andrew Wilkie have not seen those drafts.

"It's frustrating. Labor MPs have spent hours reviewing & pushing back on amendments. I'd prefer others be able to do so too," Watts tweeted.

No, the process is not good. The parliamentary process is meant to be far more transparent.

Meanwhile, the Attorney-General pushes on.

"At its heart, all this legislation does is to mandate the continuation of the status quo," Brandis told AM. But that's simply not true -- and not just in the obvious way that legislation, by definition, must change the status quo or it wouldn't be there in the first place.

Currently, law-enforcement agencies can use the law to access business data that telcos have already created. The proposal is that telcos create and retain data for which they have zero business purpose -- that they effectively conduct specific data gathering for the police.

This fundamentally changes the way in which law-enforcement and national security agencies interact with telcos. But so far, there's been no public discussion on whether we, as a society, want to change this principle.

Brandis also pointed out that roughly 80 agencies can currently access stored data without a warrant, and that this number is to be reduced. True. But so far, there's been no public discussion of whether we, as a society, want to change this principle, and require someone other than the police to confirm that access is OK.

Brandis wants to downplay the comparison with what happens in the US, where data is collected and stored by the agencies themselves. Yet, he doesn't address the question of how that is any different from telcos storing data that the agencies can access any time they like, just by asking for it.

The prime minister is trying to downplay concerns too, in his own folksy way.

"In the days when I was a journalist, there were no metadata protections for journalists. If any agency including the RSPCA or the local council had wanted to, they could have just gone and got it on authorisations. I was perfectly comfortable [with that] as a journalist," Tony Abbott said on Wednesday.

But as The Guardian's Katharine Murphy wrote: "Pure speculation on my part this, but I'm pretty confident that the prime minister didn't give a moment's thought to his metadata -- 30 years ago. Pre-digital. When people communicated in long hand. I'm prepared to put a lazy 20 bucks on the contention that Abbott would have had no idea what metadata even was. (Actually, not much has changed. Abbott still writes his speeches in long hand.)"

Indeed. I'm not sure that Abbott's feelpinion is worth the paper it's handwritten on.

So, all in all, Australians are being reassured that everything will be just fine with arguments that don't hold up, on the basis of legislation that nobody has seen. God bless democracy.

Updated at 18:10 AEDST: Added further comments from Watts.

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