Team Australia, your surveillance is ready

It's a scared new world, where all Australians are tracked for two years on the off chance that they turn bad.
Written by Chris Duckett, Contributor

The vote that assured the citizens of Australia will live under the impost of a two-year mandatory data-retention regime is recorded in Hansard with the following line:

"The House divided and only Mr Bandt, Ms McGowan, and Mr Wilkie voting 'No'."

And so it was that Australia's intelligence and law-enforcement services became one Senate vote away from being successful in their lobbying to create a sliding two-year window that could track the communications metadata of all Australians, and the movements of any person in the nation who carries a mobile phone.

Ever since the Coalition government decided that Australia needed to have its communications tracked and noted, ministers have bandied about the misinformation that what was contained in the data-retention legislation was nothing above and beyond the information telcos collect when going about their normal business.

"This law does not change the status quo," Attorney-General George Brandis told the ABC earlier this week. "Telecommunications companies have always retained this information, it has always been accessible to ASIO, to state and federal law-enforcement authorities without warrant. At its heart, all this legislation does is to mandate the continuation of the status quo."

As many have long suspected, this claim is completely bogus.

Telstra chief information security officer Mike Burgess contradicted Brandis on Monday, when he said that the telco would be forced to collect data it has no need to retain.

"There is data required under this new law ... that we don't collect today, that we have no reason to collect today, and we will be collecting it," Burgess said.

It has been interesting to watch Brandis', and by extension the government's, understanding of the term metadata develop. At least nowadays, the minister responsible for overseeing the data-retention scheme can accept that metadata is an actual concept.

Brandis had previously stated in 2013 that metadata was a contestable concept.

"I, myself, on the basis of having been informed by the evidence of those several witnesses during the course of the last parliament, thought that the prime minister's description of metadata as 'essentially billing details' was a perfectly accurate shorthand description of what is a contestable concept," he said.

Something may have changed in the past day since the data-retention legislation cleared the House of Representatives, but an itemised collection of mobile cell towers traversed does not readily appear on most Telstra bills.

Indeed, the amendments that resulted from the Joint Parliamentary Committee on Intelligence and Security's review of the original Bill entered into the House by Malcolm Turnbull clearly spell out that location data will be stored on all communications.

The sixth item of the "Kinds of information to be kept" table found in the amendments states:

[Retaining] the following in relation to the equipment or line used to send or receive the communication:
(a) the location of the equipment or line at the start of the communication;
(b) the location of the equipment or line at the end of the communication.
Examples: Cell towers, Wi-Fi hotspots.

The overt spelling out of cell towers and hotspots in the amendments makes it clear that telcos will be retaining, for two years, where its users are for warrantless access by intelligence and law-enforcement authorities -- unless one is lucky enough to be a journalist conversing with a source.

With smartphones constantly polling various data stores for notifications and updates, any citizen using mobile data or any telco-operated Wi-Fi network will be helpfully allowing ASIO to track their location, anytime they want, whatever the service.

Telstra, Optus, Vodafone, iiNet, TPG, and any reseller of their services -- however disposed to protecting user privacy they each are -- will shortly be legally compelled to contribute to this information pool.

Prime Minister Tony Abbott famously said last year that metadata is not the content of the letter, but what is on the envelope.

But, as we now know, the envelope not only states who it is being sent to, but also lists on the back every place the sender has been with their mobile phone for the last two years.

This is hardly the light touch that the government has been at pains to make its data-retention proposal appear to be.

"Metadata is extraordinarily intrusive. As an analyst, I would prefer to be looking at metadata than looking at content, because it's quicker and easier, and it doesn't lie," former NSA contractor Edward Snowden said in September.

"If I'm listening to your phone call, you can try to talk around things, you can use code words," he said. "But if I'm looking at your metadata, I know which number called which number. I know which computer talked to which computer."

This same notion was put more succinctly by former general counsel of the NSA, Stewart Baker, who said: "If you have enough metadata, you don't really need content."

For someone who has struggled to explain what metadata is, Brandis has managed to compile an awfully large store of information on the lives of Australian residents.

As Sharon Claydon, Labor MP for Newcastle, said during the metadata debate in parliament this week, do not think that the metadata-retention regime was introduced to fight terrorism; metadata has been retained for years already, and accessed over and over again in a warrantless fashion -- over half a million times in the 2013-14 financial year.

"The dramatic increase in data access is in line with the fact that we are creating an ever-greater caucus of data for authorities to access. More data and more companies equals greater risk of misuse," she said. "More care and increased oversight is therefore needed.

"Arguments that retention is pointless -- because ill-doers and criminals can use encryption programs to hide their identities, or because the regime will not capture all of the overseas data -- really ignore the need to address our unregulated open-slather access for data that we currently have."

Unfortunately for Claydon, her party failed to fix this gaping hole in the scheme, and Labor only managed to ensure that metadata retention will be universal.

The issue of abuse in this system has hardly been debated by politicians in the rush to accommodate the demands of spies and police forces.

Yet, an anonymous former police source told the ABC that they had never seen a metadata request denied, except when it would prove to be too costly.

Talking about wanting to put in a request to get the metadata on an ex-partner, the source said: "No one would pick it up because there is no detail."

Andrew Wilkie, a former intelligence officer and one of the trio who voted against the passing of data-retention in the House, made the point that metadata is property, and, as a society, we do not force the searching of property on someone unless a warrant is involved.

"Any sort of mandatory metadata storage and access arrangement must include warrants for any access. Not just for journalists, but to access anyone's metadata," he said.

"Yes, that will be hard. It will slow things up. But it will ensure that the security agencies less and less unnecessarily access our property, and more and more focus on the property of people who should be scrutinised."

Wilkie said he is concerned about the slippery slope that metadata would be used for, because politicians keep redrawing the line and drinking the Kool-Aid provided by security services.

"Of course they will ask for everything, that is their job. It is our job to limit what they get; to limit it to what is acceptable to the community; to limit the power of the state to acceptable levels," he said.

"I will certainly oppose this Bill. I will continue to oppose it and speak out strongly against it. I will call on a future parliament to wind it back."

It will be a long way back for the hopes of Wilkie and much of the population to see mandatory data-retention disappear. With both of the major parties in Australia now joined together in seeing it pass the House, it is going to be a long time before a leader of either party has the courage to wind it back.

Last year, Labor leader Bill Shorten said that the government must make sure it respects citizens and not treat them as criminals by default.

"[We need to] get the balance right between making sure we have strong national security, and the rights of citizens to their legitimate privacy," he said.

"Once liberties and rights are handed away, it is very difficult to get them back."

This week was one of the rare opportunities for the public to regain some of its privacy.

The pre-existing rampant metadata access, where even local councils and the RSPCA were able to make requests, needed to brought into line. But rather than doing what was needed, the country's Lower House has essentially codified the scheme while excluding some bodies that really shouldn't have had access to metadata in the first place.

Labor was at pains this week to congratulate itself for making the data-retention Bill more reasonable and palatable. And, yes, the amendments made some needed improvements, but it was still very far removed from what could, and should, have happened.

The Bill as introduced was a total wreck, a 30-year-old Datsun of legislation that the Coalition tried to tell everyone was actually a Ferrari, and instead of sending it back to the car yard, Labor chose to paint the damn thing a shade of racing red and insist that everything is better now.

But it isn't. Now the country has a codified method for tracking the location and communication of its citizens, a scheme shrouded in secrecy that offers an unlimited buffet lunch to all authorised agencies.

And for what? So that the members of the House of Representatives can slap each other on the back for protecting press freedom by requiring a warrant to access metadata involving a journalist and their source.

The stinger in the tail is that a two-year imprisonment penalty will also be introduced for disclosing the use of journalist warrants; revealing the existence or non-existence of warrants, thus killing of the idea of a warrant canary; and the revocation of warrants unless otherwise permitted.

This journalist will continue to be tracked, and have metadata collected, when not engaging with sources, because I am resident in Australia.

We are all going to have our metadata collected, because it is what our parliament wishes to happen to us. Even though ASIO itself admits that almost all metadata retained is useless.

If this is the deal that Labor thinks is worthy of praise, it is sorely mistaken.

Every one of the members of the House of Representatives that stood against Wilkie, McGowan, and Bandt should hang their heads in shame, for what they have unleashed is going to be near impossible to claw back.

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