Welcome to Eureka Street

back to site

Stepping on to mandatory data retention's slippery slope


Slippery SlopeMandatory data retention, currently billed in parliament as an amendment to the 1979 Telecommunications (Interception and Access) Act, was floated during a Gillard government inquiry into potential national security reforms. It was a bad idea then. It has become a worse idea since, and ought to be abandoned.

It is an idea propped up by the politics around national security, an area which floundering governments tend to latch onto so they seem to be accomplishing something, and which the opposition acquiesces to avoid looking weak.

On the other side, the folks who are bothering to scrutinise policy, the uncommon intersection of professional libertarians and the Greens ought to give anyone reason to pay attention.

There are questions that we should be asking even if we can't tell the difference between data and metadata (there is none). Is data retention an effective national security instrument as claimed? Is it appropriate for the federal government to compel commercial companies to retain data for criminal law enforcement? Does the proposed legislation expressly limit the use of this data to the investigation of serious offences?

The answers to these questions are: no, no and no.

Among a number of European countries, data retention has either been considered unconstitutional, is under legislative challenge, or has ceased altogether because the violation of privacy was found to be disproportionate and its effectiveness unsubstantiated.

At the senate inquiry on the proposed bill, NSW Police representatives could not claim that data collection was 'directly attributable' to crime clearance rates. It is also worth noting that the 2013 Boston marathon bombings, the Sydney siege last December, the Paris shootings in January – these were perpetrated by men known to authorities.

The problem then is not necessarily lack of data but rigorous analysis and intervention based on available intelligence or evidence obtainable with a warrant or subpoena. The volume of data that will be generated by two-year retention of the proposed data set will in fact impede investigation. In Canada and Denmark, 'information overload' made analysis unwieldy and yielded little outcome.

More importantly, data retention constitutes rampant overreach by the state. It has the effect of deputising private companies in the collection of information from citizens for law enforcement. The F-word you are looking for here is 'fascist'.

In essence, the federal government seeks to codify in law the creation and storage of data for future, unspecified prosecution of Australians, compelling telcos and internet service providers (ISPs) to participate in a scheme that serves no commercial interest, but which will incur costs that will be passed onto consumers or taxpayers – depending on who ultimately bears the cost of surveillance infrastructure.

There is no judicial oversight on authorisation, with a host of agencies permitted access to data including the Australian Customs and Border Protection Service. Any other body or authority that investigates 'serious contraventions' may also acquire ministerial designation as a 'criminal law-enforcement agency'.

The proposed legislation is dangerously malleable. As lawyer Leanne O'Donnell points out, the retained data can be accessed through the court process: a Pandora's box of litigants that includes your employer, the local council or the tax office. The excuse for data access might be terrorism today, tomorrow child pornography, next week failing to register your cat, organising a protest or contacting a sex worker. Journalists are particularly concerned by inadequate protection for whistle-blowers; lawyers are concerned that client confidentiality will be compromised.

If data retention has dubious policing value, inappropriately co-opts an industry into mass surveillance, exposes citizens to mischief and miscarriage of justice, and incurs cost that in this light is indefensible, then what other grounds could there be for legislation?

One possibility lies in the fact that data retention makes it easier for global copyright holders – film studios, TV networks, record labels – to sue people downloading content from file-sharing websites. They are keen to expand criminal liability to include ISPs.

In this case, data retention seems less a security instrument than the mechanism by which Australia can fulfil its recent, largely undisclosed Transpacific Partnership trade agreements with the United States, which includes criminalising online piracy. Under Australian law, downloading a movie for personal viewing is actually not illegal. Even piracy on a commercial scale is a civil matter, which places the onus on the copyright holder to litigate.

It is another way in which the role of business is being distorted, with Australian ISPs thrust onto policing. One ISP describes rights holders-imposed notions of 'authorisation' and secondary liability – wherein the protection of copyright is imposed upon a third, unrelated party – as a 'dangerous precedent'.

Any way you look at it, whether as a citizen, consumer or business owner, data retention offers no dividend and all the risk. If there ever is a piece of legislation that may be accurately described as a slippery slope, this is it. The Coalition and Labor are making us step onto it.

Fatima Measham

Fatima Measham is a Melbourne-based social commentator who contributes regularly to Eureka Street. She tweets as @foomeister.

Topic tags: Fatima Measham, national security, mandatory data retention, Malcolm Turnbull, George Brandis, Australian



submit a comment

Existing comments

Can anyone suggest a news story, past or future, that could be exclusively based on the testimony of an anonymous whistleblower, and creating a need for authorities to dip into metadata to identify them? Surely once an issue has been flagged to a journalist by a whistleblower, the facts are then verified and tested through other nameable sources. The only media stories I can think of that might have a single anonymous source are trashy celebrity gossip leaks obtained through illegal phone hacking in the UK.

AURELIUS | 20 March 2015  

Can anyone suggest a significant crime that would not have been prevented but for the unrestrained ability of authorities to dip into the meta data of anyone and everyone?

Ginger Meggs | 25 March 2015  

My confidence in your argument diminished with your comment that metadata and data were the same.As a long time watcher of Yes Minister I was reminded of a fascinating discussion Humphrey had with the P.M. regarding Metadioxin,an allegedlyharmless material. he was asked about how it differed from Dioxin, a toxic lethal chemical.By analogy metadata is harmless, but data could be highly dangerous in the wrong hands.Humphrey , a classics scholar , knew nothing about chemistry which was studied only in the lower forms but could inform the P.M. about the greek origin of "meta".Thus Dictionary.com informs us:
a prefix appearing in loanwords from Greek, with the meanings “after,” “along with,” “beyond,” “among,” “behind,” and productive in English on the Greek model:
metacarpus; metagenesis.
a prefix added to the name of something that consciously references or comments upon its own subject or features:
Thus metadata is data about data. All metadata is a kind of data, but not all data is metadata. Not the same thing at all.

len | 28 March 2015  

Aurelius: Given how opaque the immigration department has become, journalists have actually had to rely on whistleblowers (both anonymous and named). The government has in fact authorised The Guardian journalists to the AFP over leaks regarding asylum seeker operations under Scott Morrison. So it's not just about celebrity gossip.

Fatima Measham | 01 April 2015  

Ien: I indulge occasionally in pedantry myself, so I enjoyed your comment. In the discourse over data retention, the distinction has been over 'metadata' which is data (e.g. location where a phonecall was made, click on the link to the proposed data set in my article) and content (e.g. the text in the body of your email). While the latter is not subject to the new laws -yet- the data to be retained is not so innocuous and in context actually is revealing (e.g. a suicide hotline number).

Fatima Measham | 01 April 2015  

So I've heard that this will cost us upwards of 400 million? source: http://bit.ly/1CrOZqL

Albert | 06 April 2015  

Similar Articles

The enigma of Malcolm Fraser

  • Frank Brennan
  • 23 March 2015

Through the rough and tumble of politics, Fraser helped the country find true north on issues relating to race and human rights. His friendship with Gough Whitlam has been one of the great signs in Australian public life that human decency and shared commitment to noble ideals can transcend even the most entrenched political animosities cultivated across the despatch box. May he rest in peace.


How super hurts the poor and middle income earners

  • Brian Toohey
  • 27 March 2015

Although the age pension will cost about $49 billion in 2017-18, it is means tested. In contrast, superannuation concessions are heavily biased in favour of high income earners. Both sides of politics pander to the wealthy and the cosseted finance sector, which want certainty that nothing will stand in the way of their super bonanza.