As word of the national security inquiry filtered through Twitter last week, one wit remarked, 'Orwell's Nineteen Eighty-Four is meant to be a cautionary tale, not a manual'.
Not enough Australians are aware that the Parliamentary Joint Committee on Intelligence and Security (JCIS) is considering reforms of national security legislation which would fling open state access to telecommunications content. Those alarmed by the scope of the changes, such as Electronic Frontiers Australia and the Pirate Party, have only until 6 August to send their submissions despite their requests for an extended deadline.
There are many areas of concern, such as expanding interception to social networking activities (Twitter and Facebook) and internet telephony (Skype), as well as lowering the threshold for offences that may trigger interception from seven years' imprisonment to possibly three.
The two most controversial items involve establishing an offence for failing to assist in the decryption of communications, and mandatory data retention for up to two years.
What do these mean?
For one thing, people may be imprisoned for failing to provide the key to encrypted data or simply refusing to give up passwords. In other words, intelligence agencies may extract evidence where they believe it resides even if they have not established what it is or even if it's there — and you could be charged for not helping. The offence presumably applies even if you are a third party. (A similar law has been in place in the UK since 2007.)
Mandatory data retention, on the other hand, compels ISPs to store telecommunications content for the prescribed two years. This means data generated even by non ASIO targets, people like you and me, would be stored so it could be mined for current and future, unspecified investigations.
These proposals, like many post-9/11 security measures, are presented as being for our good. According to JCIS chair Anthony Byrne, 'It is vital that our security laws keep pace with the rapid developments in technology.'
The inquiry discussion paper identifies challenges posed to the intelligence sector: dominance of communication via internet protocol, diversity of the telecommunications sector, and the highly variable protection mechanisms employed by people who wish to avoid detection.
The paper also lists anonymous pre-paid services, inter-carrier roaming agreements, calling cards and online subscription services as factors that 'make it necessary for agencies to seek data from multiple providers to ascertain whether any data exists' (emphasis mine). In addition, it suggests that a third party computer may be used to target devices without prior knowledge of the user or owner. Your computer, for instance.
These constitute a disturbing concession that our intelligence sector is not equipped to deal with the increasing sophistication of covert online activity — without resorting to questionable laws.
Data retention is problematic not least because ISPs don't have the infrastructure to retain such astronomical volumes of data. (A similar plan in the UK is estimated to cost the government nearly AUD$4 billion over the next decade.)
The idea that our online activity, which happens to capture so much of our work, social life, personal history and creativity, could be sequestered by the state so that intelligence agencies may retrospectively trawl for evidence, should bring a chill down our spine.
This is not simply about sacrificing privacy for the sake of undefined securities. As noted on the Data Trust blog, 'nothing to hide, nothing to fear' is a myth. It does not account for data corruption, false or falsified analysis and unauthorised access. A minor error can make a victim of any one of us.
Moreover, the surveillance expansion being pursued in the UK, the US and Canada — and now being emulated by Australia — fits with recent patterns in other areas: drone 'signature strikes' that carry no burden of identification of targets; consorting laws that presume criminality by mere proximity.
In some of these cases, the expansion of powers has accompanied dilution of oversight or accountability.
It is not just that the doctrine of pre-emption is overriding many democratic values: privacy, presumption of innocence, and freedom of expression and assembly.
We know that injustice thrives wherever the state exerts power in a way that systematically reduces individuals into anodyne data.
Or worse than data, potential lawbreakers.
We should be concerned that groundwork is being laid for a future surveillance state.
Fatima Measham is a Melbourne-based writer, blogger and tweeter.