Attorney-General George Brandis has pulled out of the Human Rights Commission's free speech conference today after a disastrous Sky News interview yesterday where he was unable to state clearly the definition of the metadata that telecommunications companies would be required to retain, and indicated website visits would be included as part of data retention.
The government has faced criticism from telecommunications providers and privacy advocates since announcing the mandatory data retention policy earlier this week, that would see an as-yet-undetermined set of telecommunications customer data retained for an as-yet-undertermined amount of time for access by law enforcement agencies without a warrant.
The public and the telcos remain in the dark about what data will actually be required to retain, and iiNet has said that the system will add an extra AU$130 to every customer's internet bill every year.
Brandis, Prime Minister Tony Abbott, and Foreign Minister Julie Bishop have all given conflicting definitions of what data would be required to be retained, and in the interview yesterday, Brandis appeared to contradict statements from the Prime Minister's office earlier in the day that ruled out including web browsing history as part of a mandatory data retention scheme. Brandis said that while the data retention regime wouldn't include individual URLs, the government would like to retain a record of every individual website visited by Australian residents.
BRANDIS: It wouldn't extend for example to web surfing, so what people are viewing on the internet is not going to be caught.
HOST: It's not the sites you're visiting?
BRANDIS: Well, what people are viewing on the internet when they web surf is not going to be caught. What will be caught is the web address they communicate to.
HOST: Okay, so it's only — sorry, the web address, if I go to an internet site, that will be recorded and available?
BRANDIS: The web address is part of the metadata.
HOST: The website.
BRANDIS: The web address. The electronic address of the website.
HOST: Okay but if I go to the Sky News website, The Australian website, a more questionable website, is that what we are talking about here?
BRANDIS: Well, [stammering] the, what you're viewing on the internet is not what we’re interested in and that not what we regard as —
HOST: You'll be able to see whether I've been to that website, or that website or that website?
BRANDIS: What we'll be able, what the security agencies want to know, to be retained is the electronic address of the website that the web user is using.
HOST: It does tell you the website.
BRANDIS: It tells you will the address of the website.
HOST: That's the website, isn't it. It tells you what website you've been to.
BRANDIS: Well when you visit a website people brows from one thing to the next. That browsing history won\t be retained or there won't be any capacity to access that.
HOST: Excuse my confusion here, but if you are retaining the web address, you are retaining the website, aren't you?
BRANDIS: Well, every website has an electronic address, right?
HOST: Yep and that's recorded.
BRANDIS: When a connection is made between a one commuter terminal and a web address that fact and the time of the connection and the duration of the connection is what we mean by metadata in that context.
HOST: But that is telling you where I've been on the web?
BRANDIS: It records what web — what electronic web address has been accessed.
HOST: I don't see the difference between that and the website —
BRANDIS: When you go to a website commonly you will go from one web page to another, from one link to another and another within that website. That's not what we are interested in.
Brandis also indicated that the government was also considering how social media can be involved in such a scheme, as well as Skype, Google Chat and FaceTime.
The attorney-general has faced criticism over the handling in the interview since it was aired, and although he was due to give a speech to the Human Rights Commission's Free Speech Symposium in Sydney today, Brandis pulled out at the last minute.
ABC reported that Brandis pulled out of the conference to attend a memorial for the victims of the MH17 attack.
Human Rights Commissioner Gillian Triggs today told the conference that in the days since the mandatory data retention announcement, the government had moved away from advocating free speech to limiting free speech in the name of national security.
"There's been a radical reversal of the public debate from the protection of free speech," she said.
Brandis himself was originally against the retaining of website browsing history as part of mandatory data retention. In opposition as part of the Joint Standing Committee on Intelligence and Security in 2012, Brandis said it was unlikely that the electorate would accept such a proposal.
"The public would accept a level of mandatory data retention in relation to telecommunications. They would accept the logic of the regime being technology-neutral and therefore reaching the internet. But my political judgement is that there is no way in a million years that the public would not react very strongly against a proposal unless they were absolutely guaranteed that their internet browsing history or use would not be the subject of the mandatory data retention regime," he said at the time.
The former National Security Legislation Monitor Bret Walker told ABC's Lateline program last night that mandatory data retention should require agencies to obtain a warrant before that data could be accessed.
"Collection and storage is not a problem. The period of collection and storage obviously raises questions of expense and responsibility and security, because accidents happen," he said.
"If those matters can be looked after, and that will require a balance and the industry will no doubt be very concerned with all of that, then the question comes: how can it be used? And in my view, the model should remain that there is a need for a warrant."
The Australian reported today that Brandis will be meeting today with Communications Minister Malcolm Turnbull, who has been noticably absent since the mandatory data retention announcement, in an attempt to rectify the government's mishandling of the announcement.