Data retention as security theatre

Documents released under Freedom of Information last week from the Department of Broadband, Communications and the Digital Economy, advised against talking up beneficiaries of implementing data retention because, unlike airport security, there is no direct benefit to retention, though the two do have some things in common.

The documents were prepared for the Attorney-General's Department in March and April last year, before the government went public with its proposal to log telecommunications customer data for up to two years for police and other government agencies to access during the course of criminal investigations.

The police say they need the data retained because without it, they won't be able to do their jobs. They've even said that two years isn't long enough, despite DBCDE recommending in the released documents that the data shouldn't be kept for any longer than six months.

But one of the more interesting parts of the documents is, when asked on the potential benefits to the end users for data retention, the department indicated that it wasn't fair to compare the benefits of airport security to that of data retention.

"In the case of airport security screening, the passenger directly benefits from the screening through improved flight safety," the department said.

The two do have their similarities, though. While some measures in airport security do make sense for safety, so too do some telecommunications interception arrangements, such as collecting data after a warrant has been obtained. As like some of the more burdensome security measures at airports, such as liquid restrictions, body scanners, and TSA patdowns, are deemed "security theatre" in providing little benefit other than having the appearance of protecting against terrorists at the price of an increased intrusion of privacy, the case for data retention has also centred around sacrificing privacy for the sake of stopping terrorists.

Then-Attorney-General Nicola Roxon last year warned that, without data retention, we would be creating a "safe-haven" for criminals and terrorists.

"Many investigations require law enforcement to build a picture of criminal activity over a period of time. Without data retention, this capability will be lost," she said.

"The intention behind the proposed reform is to allow law-enforcement agencies to continue investigating crime in light of new technologies. The loss of this capability would be a major blow to our law-enforcement agencies and to Australia's national security."

Despite repeated requests, law enforcement agencies haven't been able to quantify what would happen were data retention not brought in outside of these Doomsday scenario examples. So, too, it is unclear exactly what terrorist attacks have been stopped by full body scanners.

At this point, it's not clear whether we'll even see the government move ahead with plans for data retention. The parliamentary committee looking into the telecommunications interception proposals has yet to report back or make recommendations to the government, and the next parliamentary sitting week isn't until the week of the budget in the middle of May.

Whether the government will then have time consider the recommendations of the report, and then move to pass legislation before the September 14 federal election, remains to be seen. It isn't expected that the legislation would pass in the current parliament, and any attempt to push it through would likely be defeated, similar to the government's messy attempts to pass media reforms earlier this month.