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AUSTRALIA

Stepping on to mandatory data retention's slippery slope

  • 25 March 2015

Mandatory 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

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