Scott and the Greens stand against mandatory data retention
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Scott and the Greens stand against mandatory data retention

January 8, 2020

I am here today on behalf of the Australian
Greens to oppose this bill in the strongest possible terms. In the course of the debate
over the next few days, we will spend a lot of time considering elements of the bill in
detail: its impact on journalists, the unknown costs, the inevitable mass breaches of privacy
that will follow and the technicalities of how the bill will actually work. But, before
we disappear into the weeds and the technical detail, I want to state plainly why I believe
that this bill is unamendable and why it should be rejected. This legislation, the Telecommunications (Interception
and Access) Amendment (Data Retention) Bill 2014, betrays a mindset that inverts the power
relationship between the state and the individual. It provides for the mass collection of private
information of 23 million people who are neither suspected nor accused of having committed
a crime. It entrenches the ability of dozens of government agencies to access these private
records hundreds of thousands of times a year without a warrant and it normalises the fiction
that this information is nothing more than billing records or the envelope that surrounds
substantive communications. Over a period of many decades, democracy has
evolved, developing ways to protect citizens from the power of the state. These are some
of the foundation principles of liberalism, from which the hollowed-out entity that proposed
this bill takes its name. One of these points of balance is the judicial warrant: if the
state wants to violate your privacy, there needs to be a good reason. These reasons include
corruption; serious organised or violent crime; crimes against children; or genuine national
security threats, including terrorism. In Australia, around 4,700 such warrants are
issued every year, and, in a country of 23 million people, that does not seem like an
undue amount. The police surveillance scandal in New South Wales has exposed the fact that
even these judicial checks and balances sometimes fail, but it is a system which has worked
tolerably well for the most part. The act that we are amending today was written
in 1979, under the prime ministership of the recently passed Malcolm Fraser. Mobile phones
only existed in Star Trek. The internet was unthinkable for all but a handful of researchers
and futurists. Fast-forward to 2015: there are more mobile phones than people in this
country and the internet is busily infusing nearly every corner of our lives. Every one
of these devices, seen and unseen, generates a cloud of information in the course of its
ordinary operation. One single tweet 140 characters long is the tip of a small iceberg of code
that runs to about a page and a half. Your phone handset is essentially a tracking device
that allows you to make phone calls. Our relationships and our social lives are increasingly mediated
by digital tools. Collectively, these devices and apps silently generate billions of records
of place, time, contact, data type and volume, all of it aggregated under this loose concept
of ‘metadata’. Anyone who tells you that these are simple billing records or the innocent
envelopes surrounding substantive communications is either technically illiterate or lying
to your face. In 2012-2013, agencies made around 340,000
demands for this information from Telstra, Optus and the rest of the telecommunications
industry, without the trouble of having to apply for a single warrant. Now, I do not
have more recent numbers than that because the Attorney-General’s Department is refusing
to publish the report for the last financial year. Telecommunications regulator the ACMA
reports 748,000 warrantless authorisations were received by carriers in 2013-14. Why
do agencies do this? Here is NSA contractor Edward Snowden: … metadata is extraordinarily intrusive.
As an analyst, I’d prefer to be looking at metadata rather than content because it’s
quicker and it’s easier and it doesn’t lie. Former General Counsel of the NSA, Stewart
Baker, said: If you have enough metadata, you don’t really
need content. And, just in case we were not completely clear,
consider former CIA Director Michael Hayden’s memorable boast of last May: We kill people based on metadata … This is a bill to entrench a system of passive
mass surveillance. It is corrosive of the very freedoms that governments are elected
to protect and it has no place in a democracy. Yet it is a democratically elected parliament
that is probably about to enact it, and nothing I say in here this afternoon is likely to
change the minds or the votes of the senators from the Liberal, National or Labor parties,
who will file in here later this week and vote the way they have been told to vote.
Many of them strongly disagree with the bill, and a small handful have spoken out; and a
few—we will pay attention to who—will no doubt be absent when the vote is finally
taken. The Liberal Party: if you go to their website,
under ‘About’ and then ‘Our Beliefs’—I wonder when was the last time you checked this out,
Senator Fifield—here is what it says: We Believe: In the inalienable rights and freedoms of
all peoples; and we work towards a lean government that minimises interference in our daily lives;
and maximises individual and private sector initiative That is why you have imposed a $400 million
surveillance tax on the whole country! Well done! The Labor Party: how apt that this week we
are debating the return of the Australian Building and Construction Commission. Presumably
you are aware that this entity, which treated the blues as though they were something worse
than terrorists, was doing warrantless metadata surveillance of trade union organisers in
its previous incarnation—somewhere between a dozen and 30 warrantless requests per year
until we closed it down. I am sure that those union members had nothing to hide and they
therefore had nothing to fear from the ABCC. And so it falls to the Greens and the crossbench
to stand up and provide the opposition that this reckless and vicious government so desperately
deserves. In this, we represent views that are entirely mainstream. Guess who described
metadata retention as a ‘sweeping and intrusive new power’ when the Labor Party was toying
with the idea in 2012? Photo of MPSenator DI NATALE: Was it Malcolm? Photo of MPSenator LUDLAM: Senator Di Natale
has it in one. Who said the following? Leaving aside the central issue of the right
to privacy, there are formidable practical objections. The carriers, including Telstra,
have argued that the cost of complying with the new data retention regime would be very
considerable with the consequence of higher charges for their customers. Yes, that was the Liberal member for Wentworth,
Mr Turnbull, basically demolishing the case for this proposal—probably more eloquently
than I am today. Who said: ‘I think that this proposal is akin to tactics that we would
have seen utilised by the Gestapo’? Well, that was the Liberal member for Moncrieff,
Mr Steve Ciobo. When Labor does it, it reminds him of the Nazi secret state police; when
Prime Minister Abbott and Senator George Brandis pick it up, it is just to keep us all safe
and there is nothing to see here. The President of the Law Council of Australia, Mr Duncan
McConnell, was a little less strident but still believed the following: They propose that the bill be withdrawn, amended
and released as exposure draft legislation for public consultation. He goes on to explain why: because of ‘concerns
about the proportionality of the data retention regime, security of the retained data and
the impact on privacy and confidential communications.’ That is the Law Council. The CEO of the Media,
Entertainment & Arts Alliance, Paul Murphy, put it this way: Any system with the capacity to go after confidential
sources has a chilling effect on journalism because it targets whistleblowers who seek
to expose wrongdoing, illegality, dishonesty, fraud, waste and corruption. If you are going
after sources, then you are going after journalism. This government appears to be enjoying something
of a habit of going after journalists to find out who they are talking to when they print
unpopular stories about things like the horrors of the prison camps that we maintain on Pacific
islands. Nobody on that side of the chamber appears willing to make eye contact at the
moment. Do not say you were not warned: industry has
been raising the flag, and so has the former Director-General of ASIO, Mr David Irvine.
Telstra’s chief information security officer, Mike Burgess, put it this way: If [you were] that way inclined as a hacker,
you would go for that system because it would give you the pot of gold, as opposed to working
your way through our multitude of systems today to try and extract some data. Of course, this $300 million or $400 million
surveillance tax is going to build new data centres to store all this excess material
that industry has not had to store before. But it is not just that, and I am not sure
that it is well understood. It is about the systems that would allow the telcos on demand
to very rapidly withdraw the material from their servers and provide it to these agencies
on the basis of the rubber-stamped request, which means matching names and address types
across all the various systems. It creates a huge new pool that will be entirely attractive
for people with malicious intent. Do not say that you were not warned. In the end it will be the Greens and the independent
crossbenchers who provide the opposition—just as it was in the House of Representatives
when this was committed to a vote last week—but anyone who can count understands that there
will not be enough of us. We have seen this before—most vividly last year when the Australian
government criminalised national security reporting. When Prime Minister Abbott wraps
himself in the flag—no matter how much an object of desperate ridicule he has become—that
is the signal for the Australian Labor Party to say something earnest about finding the
balance and then to cave in. Those two words, ‘national security’, are all it takes for
the Australian Labor Party to flop into defeated bipartisanship because they are terrified
the Daily Telegraph will say mean things about them. If the bill passes, we know this will be just
the beginning. It has scope creep written into its DNA. The Attorney-General can add
new categories of data and new agencies to the list of people who can look through your
stuff any time he likes. They propose that parliament should to ratify the Attorney-General’s
decision within 40 sitting days. Depending on the time of year, 40 days could be anything
up to six months; and parliament will be expected to rubber-stamp the decision that the Attorney-General
makes. The Victorian police wanted five years. There is no secret among some of the agencies
pushing for this proposal that two years was the minimum, even though that is the maximum
that has been applied anywhere else in the world. They will be pushing for five years,
next time something awful happens somewhere in the world; then they will be pushing for
it not to be deleted at all, because it has proven to be so valuable. Then they will be
pushing for web traffic and session logs. Scope creep only operates one way: once you
legislate this kind of system, it is immensely difficult to claw it back. The saddest thing about this policy debacle
is that nobody can provide any evidence that it will reduce crime or make people safer.
There are any number of anecdotes about the importance of metadata for investigations—I
understand that it is used in slightly less than 100 per cent of investigations. I understand
that it is valuable and I have no reason to believe that the anecdotes that are flipped
out by people pursuing this policy are untrue. But where is the evidence that blanket surveillance
of millions of innocent people helps reduce crime? In Europe, where a data retention regime
was briefly implemented before being thrown out by the European Court of Justice as an
abuse of human rights, the evidence is crystal clear in its absence—data retention had
no impact whatsoever. President Obama’s high-level panel on the NSA’s surveillance abuses came
to the same conclusion: targeted surveillance of criminal suspects and networks helps prevent
and solve crime; mass surveillance of millions of innocent people does not. What an immense
surprise that must be to all of us. When I asked Senator Brandis last week in
question time to provide evidence of how indiscriminate collection of the private phone and internet
records of millions of innocent people helps make the country safer, instead of evidence,
he referred me to an ASIO press conference—simply because ASIO says so, because they want it.
Chair of the Parliamentary Joint Committee on Intelligence and Security, Mr Tehan, has
done much the same thing on many occasions. Of course, clandestine agencies and police
authorities want more power. It is the job of the Attorney-General to keep them in check.
If the Attorney-General ends up being too compliant to uphold this responsibility, then
it falls to parliament. The Abbott-Shorten mass surveillance unity ticket sets this parliament
up to fail. Instead we fall back on the dismal logic of ‘nothing to hide, nothing to fear’.
That is the logic of the police state: if you have done nothing wrong, then the police
have no need to go through your stuff. Can anyone in here recall a bill passing where
the government and opposition did not know to within the nearest $100 million how much
it would cost? Last week an extraordinary letter was signed by the CEOs of the nation’s
major telecommunications providers, and I seek leave to table that letter now. It was
circulated earlier with the consent of the whips. Leave granted. Photo of MPSenator LUDLAM: This is a letter
that has been signed by the nation’s telecommunications
providers—from Telstra, Optus, Vodafone Hutchison, the M2 group, iiNet, Macquarie
Telecom and a whole page of others—demanding to know who is going to pick up the tab for
the 300 to 400 million dollars surveillance tax that the Liberal Party and the Labor Party
are introducing today. They say in part: We note that the Government has variously
indicated it will make a “reasonable” or “substantial” contribution to these costs— that is, out of taxpayers’ money— which might exceed $300 million— but they do not know; they are guessing; they
are as much in the dark as the rest of us— according to estimates provided by the consultants
commissioned by the Government. They have seen that document; this parliament
has not, and neither has anybody in the public, because the government refuses to table it.
The letter continues: Our request to you is, we believe, relatively
simple and reasonable. It is that the Government provide to industry,
the Parliament and the wider community a degree of certainty as to the size of the Government’s
planned contribution— and how they plan on cutting up these funds.
This is going to drive some of the smaller telecommunications carriers in this country
to the wall. Telstra is not wild about this proposal, but it will be able to adapt and
upgrade its systems—and it has said as much—which are very large and complex. But, of course,
Telstra has pretty deep pockets and it is going to be able to accommodate a proposal
such as this. What about the smaller providers, who are suddenly being forced to participate
in the building of new data centres to help host this stuff or to farm it offshore to
cloud providers who knows where?—maybe China. Best of luck hanging on to that material once
it has left this country. Having tabled that letter, I would also like
to move my second reading amendment. The amendment adjourns the debate until after the matters
raised in the letter by the CEOs have been resolved. I move: At the end of the motion, add : and, noting concerns about a lack of clarification
from the Government about costs associated with this bill as strongly addressed in a
letter to the Government signed by the chief executives of Telstra, Optus, Vodafone, iiNet
and a number of other major telecommunications companies, further consideration of the bill
should be made an order of the day for the day after the Government tables its response
to the industry’s concerns on cost. On the understanding that the Abbott-Shorten
surveillance unity ticket will override the better judgement of individual senators, who
I know hold their own private misgivings about this bill, what happens next? My words today are essentially for those outside
the building, because, as it happens, there is plenty we can do: when the parliament fails
in its fundamental job of constraining executive power, we can take our power back as citizens,
as Australians, in many other ways. I want to thank everyone who called their Labour
senators or who melted opposition leader Bill Shorten’s phone over the last couple of weeks
and everyone who hit up the Labor Party on social media. The injured tone of Senator
Collins in introducing her remarks was readily apparent—I almost felt sorry for her. Forgive
us for not expressing our gratitude to the Labor Party for caving in to Prime Minister
Tony Abbott. It was very apparent from Senator Collins’s tone that it has only just sunk
in that the very medium that you are compromising with mandatory data retention is the same
medium that you need to sell the rest of your agenda—and you wonder why people are not
listening to you and why they are so angry. It is entirely lawful—in fact, it is built
into the bill—to circumvent mandatory data retention just by using overseas providers.
If you do not want your email records kept under mandatory data retention, go with an
overseas provider like Gmail or Yahoo! or Hotmail, if that is still around. Use Facebook
Messenger. Use Twitter direct mail. I am not advocating that, of course, because that is
extremely bad news for Australian telecommunications providers—that effectively the government
is incentivising people to use offshore services. Well played; very, very smart; nicely supportive
of Australian industry there! The government have had to do that, because of course there
is no way of compelling overseas providers to hand over their records to an Australian
data retention scheme. So, if you do not want your email records kept by this scheme, use
Gmail or Hushmail or an overseas email provider. That is entirely legal. Any over-the-top service
provider circumvents this bill: bravo, and well played! Encryption is not illegal. The United States
went through a very damaging variant of this debate in the 1990s during the so-called crypto
wars, which fundamentally established that everything from the global financial system
to global diplomacy, business and global civil society actually depends on strong encryption,
depends on privacy. That was a lesson that was only learned at some cost. Encryption
is not illegal. Private-key cryptography—including the very phone apps that Mr Turnbull is using
to orchestrate his takeover of the Prime Minister’s office—keeps no metadata. These systems
keep no metadata; they leave no trace. They will be completely beyond the reach of this
data retention scheme—as Mr Turnbull, who introduced this bill, so helpfully explained
a couple of weeks ago. Free services like TOR, the onion router, which allow you to
use the internet anonymously, completely defeat the purpose of a mandatory data retention
scheme—and everybody knows this. Virtual private networks, available at a very reasonable
subscription rate, make it impossible to tell where in the world who are when you are using
the internet—also not illegal. Anonymity is not illegal, circumvention is not illegal
and cryptography is not illegal. So what I am proposing now is that we take
our power back from a government that quite clearly has drunk the surveillance Kool-Aid,
even though there is abundant evidence that it will do nothing at all to keep people safe
or to reduce crime. If you are unhappy, perhaps most of all, with the dismal arithmetic of
this place, then change the balance of numbers in your parliament in 2016, and replace major
party politicians with people who have the capacity to think and vote independently on
issues like this, rather than just sucking it up from the leader’s office. If you have
a few moments to spare, call opposition leader Bill Shorten. His number is (02)62774022.
Maybe just make that call now—you will feel better; I can guarantee it. We will not forget what the major parties
have done this week and we will not forgive them when the inevitable privacy breaches
occur down the track. This measure will be repealed at some stage in the future, either
repealed or rendered obsolete as technology marches forward. If you are listening to this
debate and you wish it were to end differently, change the way parliament operates and help
break the two-party system once and for all.

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