Telcos wearing the costs of selfie-stick policymaking

Policymaking should be about evidence-based improvement, not just leaving swathes of destruction around you. Yet, as the Coalition tries to ramrod data retention into existence, the real costs of policy self-obsession are once again becoming clear.

A growing number of museums around the world are tightening their rules about the use of "selfie sticks" -- those extensible camera and smartphone holders used to photograph oneself from much farther away than is possible using an arm alone.

The concern of institutions such as the National Gallery of Australia and New York's Metropolitan Museum of Art -- the latest to ban the selfie stick -- is not so much that visitors will take better photographs, but that they will become so lost in their photographic onanism that they will inadvertently whack other visitors. Or knock over a 2000-year-old Greek urn.

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Rather than railroading expensive new policies, telecoms policy must consider the whole picture. (Image: Floris Oosterveld CC BY 2.0)

I have no idea whether Australian Prime Minister Tony Abbott is a fan of the selfie stick, but his policymaking process suggests as much. Here, after all, is a government so focused on building its vision of Australia that it has repeatedly adopted a legislate-first, think-later approach that ignores the prospect of collateral damage.

In the telco area, we've watched it happen time and again around the National Broadband Network (NBN) as the new government's anti-fibre-to-the-premises (FttP) mentality exacted its toll of uncertainty on the industry. Work dried up, telcos lost interest, promises of a fair and equitable industry fell by the wayside as Telstra was gifted concession after concession, and the government bought the proverbial Broken Hill mansion with sea views.

Meanwhile, the rest of the telecoms industry sat and waited. And fired people. And, in the case of civil subcontractor Techdrill Mining and Civil Services, eventually had to give up on the hopes of building a real business around the NBN. Ditto TPG, whose ambitions to provide real competition to NBN Co were quashed when Communications Minister Malcolm Turnbull gave it just weeks to comply with legislative guidelines that he fully knew TPG could never meet.

You can't blame the industry for feeling a little pushed around, especially now that the government has confirmed that implementing its controversial data-retention legislation will cost Australia's telecommunications industry AU$400 million.

Abbott has pulled out all of the expected rhetorical devices to paint the process as a necessary by-product of preserving Australia's freedom, protecting us from the horrible nasties on the internet, and even mentioning child pornography -- the civil libertarian's equivalent to Godwin's law -- in his push to justify clamping down on internet freedoms.

This, from the very same party that was so concerned about child pornography that it opposed Labor's introduction of a mandatory internet filter, which was justified on the basis of clamping down on the same degenerates.

The Coalition was working so hard to paint itself as not supporting interference with Australians' communications, you may recall, that Turnbull was in 2013 forced into an embarrassing backflip when he went into damage control over a leaked filtering policy that, Turnbull quickly confirmed, was indeed not a policy.

The party's clarification of its position on filtering seems strangely relevant to the current debate over data retention.

"The Coalition did not implement an internet filter when we were last in government because it was not workable or effective, and it offered parents a false sense of security," pro-filter advocate the Australian Christian Lobby was told in an official party response.

"The Coalition has continued to closely monitor and assess whether a mandatory ISP filter could technically offer real protection while not interfering with the internet experience of law-abiding adults. These conditions have not yet been met to our satisfaction... The Coalition believes the best internet filter a child can have is a parent who is engaged in what their children do and see on the internet."

Such statements may reflect the policy pragmatism for which the Coalition is famous, but they also make a mockery of the process by which Abbott is now trying to ramrod data-retention legislation through a parliament that is understandably touchy about compromising citizens' freedoms and privacy, something so sacrosanct in this country that we're about to celebrate the first anniversary of revamped privacy laws designed to protect personal data from snooping.

Abbott argued that metadata has helped solve all sorts of crimes in the past -- seemingly without any understanding that such statements contradict his assertion that broader retention is necessary. How else, after all, could those crimes have been solved unless adequate metadata is already available to authorities when they need it?

If Abbott believed that he had the support of the Australian public for the laws, he wouldn't have buried the consultation period about the legislation in the post-Christmas lull, subsequently drawing on the low number of submissions as a sign that Australians are thrilled about the prospect of having their every online movement available for tracking, analysis, and dissection.

An even bigger problem has been the government's Walkley Award-winning inability to explain what it wants telcos to collect. Ministers have been easily tripped up in the media's efforts to explain the difference between web usage and IP session information, with Turnbull perhaps the most level headed on this prospect.

Even now, just weeks before Abbott wants the legislation finalised, he apparently still hasn't learned what it is that he is trying to catch.

"Until quite recently, we had a relatively small number of telecommunications providers, and they kept very comprehensive records for quite some considerable period of time," he said in a February 18 doorstop interview.

"What we've seen in recent times is an explosion of different providers and a whole lot of different modes of communication. For instance, a lot of people don't even use mobile phones that much these days; they use Skype and things like that."

Whether would-be criminals are using Skype or Snapchat or PlayWorld Wiggles is irrelevant to data-retention plans unless the government is indeed planning to record details about what types of applications Australians are using -- information that is supposedly out of the scope of the legislation.

As technical types know, but the government apparently cannot fathom, applications like Skype run at an entirely different protocol layer than the mechanisms of IP addressing that they claim to be interested in.

To confirm that a person was in fact using Skype at any particular time, it would be necessary to either monitor the individual ports in use by each user -- which can, of course, be easily masked by users who want to do so -- or actively engage in data sniffing of the type that really would seem to need to be covered by a warrant.

It may seem to be an arcane differentiation, but it reflects the sheer difficulty of what the government is proposing. Opponents and even open-minded cynics have pointed out these difficulties for some time, but with a price tag now put on the legislation, the industry finally knows how much of an issue this policy may become.

And that, of course, is assuming that the estimate turns out to be correct. Optus has conceded that the legislation is "workable", but only because the targeted data set has been refined over time. Yet, the actual costs, the company argues, are commercial-in-confidence secrets, which will, of course, be passed on to consumers.

Most of the new communications companies that Abbott refers to are far less well resourced than Optus and Telstra. The costs involved in setting up a working infrastructure for mandatory retention of customer data will be significant and ongoing for small providers, as will the costs of compliance with what is likely to be an ever-increasing volume of requests by law-enforcement authorities.

If the scope of the legislation increases over time -- and why wouldn't it, since even the attorney-general has admitted scope creep is possible -- things will get far more expensive pretty quickly.

This is not to say that metadata may not be useful -- only that the policy to extend its availability continues to be formulated without regard to the real impact that it may have on the sector charged with its execution.

iiNet has already successfully fought the imposition of this sort of responsibility in its battle with the movie industry, becoming a sort of whipping boy for telecoms interventionism. Yet, as the debate around data retention continues to swirl in mystery and confusion, it's important to step back and ensure that everyone is clear on what the AU$400 million price tag actually means for the industry.

Put away the selfie stick, Tony: It's important that you stop trying to identify your best side, so to speak, by which your government can invade the centre of an entire industry. Without stepping back to inject a dose of industry reality into its policymaking, the government risks creating a black hole of effort and expenditure, as well as a steady erosion of the privacy that many still consider to be a basic civil right.

Selfies may be a great souvenir, but if you leave an angry curator sweeping up pieces of porcelain behind you, it's worth asking whether they are really worth the cost.

What do you think? Is the AU$400 million price tag reasonable? Should consumers be expected to bear this cost, or should telcos absorb it as yet another cost of doing business? And where should the government draw the line around the scope and implementation of data retention?