Tech issues Australia's freedom commissioner should address

In the abstract, the appointment of a freedom commissioner at a time when the world is starting to realise the extent of the US surveillance regime, and the efforts of governments to suppress internet access, sounds like a good idea. But not everyone's notion of what constitutes "freedom" is the same.

A week before Christmas, Attorney-General George Brandis found the perfect present with which to troll the more progressive parts of Australia's political community: The appointment of Tim Wilson, from the right-wing think tank the Institute of Public Affairs, to the Human Rights Commission as its first "freedom commissioner".

"He has published and broadcast widely on the topics of personal freedom, liberal democratic values, and the rule of law. He was at the forefront in thwarting recent attempts to erode freedom of speech, freedom of the press, and artistic freedom — rights and freedoms Australians have always held precious," Brandis said at the time.

The appointment of Wilson reminded me a bit of Ron Swanson from Parks and Recreation. A libertarian who holds contempt for certain government positions being given a certain government position. It was even more confusing, as his former employer had previously advocated shutting down the Human Rights Commission; Wilson will now get a tidy AU$325,000 per annum from the government for a job that his former employer said shouldn't exist.

But leaving aside the odd selection for the role, the position of a freedom commissioner could do a lot of good, provided it lives up to its name.

In the next 12 months, there are going to be a lot of technology-related issues on which the government will have to make decisions that could have potentially wide-ranging impacts on the freedom of Australian citizens. If, as Brandis believes, Wilson is independent of the government in his role, he will need to potentially speak out against the government's actions.

The surveillance state

The revelations of NSA whistleblower Edward Snowden about the extent of the NSA's spying program, including the fact that Australia's own spy agencies were willing to hand over metadata from Australian telecommunications companies to US authorities late last year, have thrown a spotlight on what powers our governments have to collect information on our daily communications with little to no public judicial oversight.

At the same time, the Australian government has yet to announce its response to a parliamentary inquiry on telecommunications interception and access, which asked the government to decide whether internet service providers (ISPs) would be required to retain telecommunications metadata for up to two years.

Brandis has already labelled Snowden a "traitor", and has made clear his distaste for the information being released into the public domain. However, given the attention focused on this area, it is difficult to see that the government would push ahead with any plans. In seeking to avoid any controversy on the topic prior to the election, Brandis told me that the Coalition had no policy in that area, and that any such decisions would be made by the Cabinet after the election.

But the government will at some point need to make a decision on what to do with the report, and no doubt law enforcement agencies are, behind closed doors, loudly pushing for the minister to implement the proposals they had also pressured Labor into adopting. Brandis has already said that he is looking to have a national security focus in his portfolio.

Brandis himself was on the fence about the need for extending data retention laws during the inquiry, but would the freedom commissioner see the powers as protecting the freedom of Australian citizens from terrorism, as the law enforcement agencies would suggest? Or would it be limiting Australian citizens from the freedom of their government spying on their every move on the off chance that they might be terrorists?

While Wilson himself hasn't talked much about the data retention proposals, the IPA has been strongly against them. The group appeared before the committee last year, and in its written submission said that data retention is "onerous and represents a significant incursion on the civil liberties of all Australians".

"Data retention would be a continuous, rolling, systematic invasion of the privacy of every single Australian, only justified because a tiny percentage of those Australians may, in the future, be suspects in criminal matters," the organisation stated.

"Indiscriminate data retention is an abrogation of our basic legal rights. Data retention regimes make internet users guilty until proven innocent."

If Brandis is right in holding the IPA in such high regard, clearly these are the views that he should like to see the freedom commissioner bring to the role, too.

TPP

The United States and the other nations involved failed to meet the deadline for having the Trans-Pacific Partnership (TPP) negotiations completed by the end of 2013. The US was alone on a number of positions put forward, including intellectual property rights, clamping down on online copyright infringement, and the ability for foreign companies to sue governments for enacting legislation that could harm their business in a particular country.

We don't know the exact wording of the proposals, or what might be in or out of the document because the Australian government is refusing to release the text of the document, despite an order from the Senate to produce it. The detail of the negotiating text has only come about through a leak of the text late last year to WikiLeaks.

In an interview just before Christmas, Wilson told SBS that it was no big deal that the government wasn't making the document public before signing it, and that those who were concerned were just trying to "derail the process".

Given that the TPP could be agreed to this year and then go to the Joint Standing Committee on Treaties, now chaired by the youngest member of parliament Wyatt Roy, to recommend whether the treaty should be ratified, this is one area where the freedom commissioner may want to make his views known.

Does he support the freedom for foreign companies to sue the government for policies they don't like? Does he support the freedom for Australian ISPs to not be beholden to implement three-strikes policies for users who are freely downloading copyright-infringing material online?

Copyright

The latter issue is likely to come up again when the government announces its position on the Copyright Review report handed to the government at the end of November last year. Brandis has until February to table the report in parliament and announce its position after that, but he has already indicated that he is unlikely to support some of the expected recommendations, such as a broader fair use system.

"Without strong, robust copyright laws, they are at risk of being cheated of the fair compensation for their creativity, which is their due, and the Australian government will continue to protect them," Brandis said.

"I want to reaffirm the government's commitment to the content industries. It is the government's strong view that the fundamental principles of intellectual property law, which protect the rights of content creators, have not changed merely because of the emergence of new media and new platforms."

It would seem that Brandis' praise for Wilson's support for "artistic freedom" would then naturally lend itself to the protection of copyright. But Wilson has previously spoken out against using artists' copyright protection to act as protection for particular industries. In 2011, he said that "culture doesn't flourish on the back of government protection" in suggesting that preventing parallel importing of books is somehow protecting Australian authors.

"The long-term threat to book retailers isn't cheaply imported printed books, but digitised ones on devices such as the Amazon Kindle. Electronic books cannot even be taxed at the border," he said,

"No doubt many consumers will continue to enjoy physical books. But faced with the choice of buying a high-priced, locally made book and a cheaper electronic alternative, they'll almost certainly vote with their mouse clicks."

Similarly, implementing a rigid protection system for copyright to deter users from infringing has also been shown not to work elsewhere in the world, and film studios and TV companies will continue to face the same trouble without offering affordable, timely alternatives to customers.

e-Safety Commissioner

The internet filtering issue is unlikely to rear its head again for quite a while, given the masterful backflip from the Coalition just five hours after ZDNet broke the news two days out from the federal election that the party was planning an opt-out internet filter for "adult content" similar to the UK's model. But the plans for a government-appointed arbiter of what can and can't be on social media is still going ahead.

I understand that the government is preparing a discussion paper to be released later this month that will set out the idea for how to establish an e-Safety Commissioner that is able to compel social media sites to remove the material if it is considered likely to cause harm to a child.

Cracking down on cyberbullying as a concept in and of itself is not a bad thing, but given that the concept of what constitutes bullying is fairly subjective, who in the government will decide what is and isn't bullying and what speech should be removed from social media?

More importantly, how is making social media companies remove content that is offensive or bullying any different from the section of the Racial Discrimination Act that the Coalition has vowed to repeal that makes it illegal to insult or offend people based on their race?

Wilson himself before his appointment had been incredibly critical of the so-called "Bolt law" that got conservative commentator Andrew Bolt into strife for articles implying that light-skinned people were identifying as indigenous Australians for personal gain.

Surely, the freedom commissioner, who is so strongly in favour of free speech, will see that the imposition on global social media companies of one government bureaucrat having the power to decide what can and can't be posted online would potentially have an impact on freedom of speech. Especially given what he has said on the matter in the past.

"Understandably, we all go squeamish when we are called to defend the principle of free speech. We are never called to defend it when people say 'please' and 'thank you', only when individuals say something that at least someone doesn't like... But the solution is more speech, not less. We should preserve the right to speak out, mock them, and ridicule them for the stupidity of their comments or the hate in their heart."

So while the criticism of Wilson's appointment to the newly created role of freedom commissioner is understandable, it does not need to be a token role where nothing is achieved.

He has his work cut out for him, provided he chooses to take up that work.