As the Parliamentary Joint Committee on Intelligence and Security (PJCIS) convenes its hearings today in the wake of the Sydney hostage crisis, the Pirate Party urges that this tragedy not be used to hastily legislate mandatory data retention. The Pirate Party, while acknowledging and praising the work of NSW Police in resolving the situation, is deeply concerned about the effectiveness of existing investigative and monitoring procedures.

“We must be cautious not to allow this tragedy to cover the passing of legislation that disrupts fundamental rights and freedoms,” commented Brendan Molloy, President of the Pirate Party. “To date, all incidents that could have been preempted have been with existing police powers. Incidents like the Sydney Hostage Crisis would not be preempted with data retention.”

“A significant question that needs to be answered is how a person such as the perpetrator, Man Haron Monis, who was known[1][2][3] to be a potential threat to the community was not under targeted surveillance, as there are already sufficient powers for this purpose. Our law enforcement and intelligence agencies seem too caught up in pushing for more powers and tools, including data retention, rather than responsibly and effectively using the powers they already have.”

“It is vital that this tragedy is not used to needlessly take away the rights and freedoms so basic to our democracy. We urge the Committee on Intelligence and Security to seriously consider the reality that ‘lone actor’ attacks are conducted by people who will not be detected through data retention, and that terrorist organisations know this and are using it to their advantage[4].”

As with previous inquiries into National Security, the Pirate Party intends to make a submission to the PJCIS on or before 19 January 2015. The Party encourages all concerned members of the public to also submit.

[1] http://www.abc.net.au/news/2009-11-09/radical-muslim-cleric-goes-unchecked/1135594
[2] http://www.theage.com.au/nsw/sydney-siege-gunman-man-haron-monis-was-on-bail-for-40-sexual-assault-charges-and-accessory-to-murder-20141215-127u1e.html
[3] http://www.theguardian.com/australia-news/commentisfree/2014/dec/16/sydney-siege-should-not-be-used-to-justify-draconian-anti-terrorism-laws?CMP
[4] http://www.nytimes.com/2014/12/17/world/asia/sydney-australia-hostages-anti-terrorism-measures.html?_r=0

The Australian Government today announced it is going ahead with an ineffective “strategy” to “tackle” online copyright infringement, which puts a gun to the head of ISPs by requiring undue compromise with the copyright industry or face legislative regulation[1]. Despite being demonstrably futile, the Government will be pursuing both a notification scheme and court-ordered website blockades. The Pirate Party opposed both as neither will reduce infringement in Australia and do not address the more pressing issues of accessibility and affordability, instead targeting normal human behaviour[2].

It appears copyright holders will be able to request that an Internet service provider (ISP) sends an educational notice to an alleged infringer, with no actual penalty attached. Copyright holders will also be able to seek an injunction that requires ISPs to block access to websites that allegedly infringe copyright or facilitate infringement. Groups including “wifi providers” and “libraries” are also unreasonably expected to act as “copyright cops” according to an FAQ on the Minister for Communication’s website[3].

“This proposal is effectively the beginning of an Australian version of the failed US Stop Online Piracy Act. Notification schemes, graduated response schemes and website blocking do not work. They are costly, ineffective and disproportioned, as evidenced by academia and decisions of foreign courts. Fighting the Internet itself as opposed to solving the lack of convenient and affordable access does not work, nor does propping up business models that rely upon the control of content consumption in the digital environment,” commented Brendan Molloy, President of the Pirate Party.

These points have been refuted strongly by the Pirate Party and others in their submissions on the Government’s Online Copyright Infringement discussion paper. The efficacy of blocking websites was examined in a Dutch Court of Appeals case earlier this year, where the Court found there was insufficient evidence that blocking the Pirate Bay was effective at reducing copyright infringement and ordered that the blockade could be lifted. The Pirate Party arranged a translation of the judgment, which is available from the Pirate Party’s website[4].

“While it is claimed this benefits consumers as well as copyright holders, the Government has not lifted a finger to address recommendations that would genuinely resolve the access and affordability issues faced by Australians. If the Government was serious about addressing copyright infringement, it would focus on the reality that geographically segmented markets for digital content are unacceptable, impractical and impossible in 2014, that copy protection does little except frustrate paying consumers, and that consumers demand flexibility in the way they can consume content.

“The Government is creating a situation in which everyone is expected to work for the benefit of copyright holders. It is clear that the Government anticipates that everyone who provides access to the Internet, including libraries, schools and cafes that provide wifi hotspots, will be policing the connection on behalf of copyright holders. Regardless of the burden this would impose, everyone will be working to prop up and protect industries that have stubbornly refused to adapt to cultural and technological changes that have been occurring for at least the last 25 years.”

The Pirate Party suspects that these plans tie-in with the ill-defined purpose behind data retention legislation currently before Parliament. Several definitions of “metadata” have included data that could be used for the purposes of civil litigation, including actions for alleged copyright infringement.

Meanwhile it appears the Minister for Communications, Malcolm Turnbull, has dismissed contentions that blocking websites is Internet filtering[5]. The Pirate Party disagrees with the Minister’s misunderstanding of the core definition of “filter”, holding that blocking access to websites is censorship.

“Website blocking is censorship, plain and simple. It has always been suspected that file-sharing would be captured by filtering at some stage. Now the Coalition has dropped all pretence and introduced a form of filtering purely to protect old media from the Internet. By ignoring the IT Pricing Inquiry and numerous submissions to different reviews that Australians are regularly paying more and waiting longer for content, the Coalition is looking to enact a legislative dinosaur that will be easily bypassed by savvy Internet users in seconds,” commented Simon Frew, Deputy President of the Pirate Party.

“The Liberal Party recognised just before the last Federal Election that Internet censorship is electoral suicide and abandoned its policy on the eve of the election. Voters aren’t stupid and will see this renewed censorship policy for what it is.”

Mr Molloy added: “People have decided that they want to engage with their culture in new ways that conflict with the Copyright Act, and the Government’s press release itself notes that it has sided with copyright maximalists over the interests of their citizens and voters. Using such legislation to fight the amazing technological advances that have brought the entire world closer together to interact in ways previously unimaginable is futile beyond measure.

“Copyright-based industries must act to meet consumer demand, not cynically attempt to have legislation akin to the failed American SOPA implemented in Australia to penalise consumers for their own antiquated business practices.”

The Pirate Party calls on ISPs to hold firm against any proposals that would turn them into “copyright cops” and would interfere with their customers at the behest of the copyright industries.

[1] http://www.malcolmturnbull.com.au/issues/new-measures-to-tackle-online-copyright-infringement
[2] http://pirateparty.org.au/media/submissions/PPAU_2014_AGD_Online_Copyright_Infringement_DP.pdf
[3] http://www.malcolmturnbull.com.au/issues/new-measures-to-tackle-online-copyright-infringement
[4] http://pirateparty.org.au/2014/12/09/website-blocking-ineffective-and-disproportionate-says-translated-dutch-court-judgment/
[5] https://twitter.com/joshgnosis/status/542519751214260227

Proposals to allow copyright holders to seek injunctions that require Internet service providers (ISPs) to block subscribers’ access to allegedly infringing websites will allegedly be presented to the Federal Cabinet today[1]. Coincidentally, the Pirate Party is pleased to publish its recently-commissioned translation of a Dutch Court of Appeals case (ECLI:NL:GHDHA:2014:88) that casts significant doubt on the efficacy of blocking websites[2].

The Pirate Party arranged and crowdfunded a certified translation of the case involving two ISPs, Ziggo and XS4All, and Dutch anti-piracy association BREIN[3]. The translation was carried out by Sydney translation service Linguistico and the Pirate Party has published the translation under the Creative Commons Zero licence, allowing unrestricted use.

“Today the Pirate Party has demonstrated that it is willing to put its money where its mouth is and contribute to the commons. This translation is a significant piece of evidence that can be used to campaign against Internet censorship,” said Brendan Molloy, President of the Pirate Party.

“What this judgment makes exceedingly clear is that website blocking is ineffective and disproportionate for the many reasons we outlined in our submission[4] on the Government’s Online Copyright Infringement discussion paper.”

Many submissions to the inquiry, including the Pirate Party’s, argued that the discussion paper attempted to solve a problem that does not exist, while acknowledging yet overlooking the major issue of access to content.

“What is known to solve the ‘piracy problem’ is providing consumers with convenient, timely and affordable access to the content they wish to acquire, and these alleged proposals will regress Australian copyright, not progress it,” commented Mr Molloy. “Another look at the recommendations of the ALRC ‘Copyright and the digital economy’ review certainly wouldn’t go astray.”

The Pirate Party thanks all of the supporters who contributed to the crowdfunding campaign that made this important translation possible.

[1] http://www.smh.com.au/digital-life/digital-life-news/no-harsh-penalties-for-illicit-downloaders-under-copyright-reform-20141208-122rmj.html
[2] http://pirateparty.org.au/media/documents/ECLI_NL_GHDHA_2014_88_ENG_Ziggo_v_BREIN.pdf
[3] http://www.pozible.com/project/185899
[4] http://pirateparty.org.au/media/submissions/PPAU_2014_AGD_Online_Copyright_Infringement_DP.pdf

Last Friday, the Parliamentary Joint Committee on Human Rights released its report on the Government’s planned mandatory data retention scheme, reviewing its impact on basic human rights[1]. The Committee of 5 Coalition MPs, 4 Labor MPs, and 1 Greens MP[2] slammed the new bill, citing concerns that in its current form the bill may be in violation of Article 17 of the International Covenant on Civil and Political Rights, which prohibits arbitrary interferences with an individual’s privacy, family, correspondence or home. The Bill’s reliance on future regulation to define the scope of surveillance has the potential to create such an interference.

The report spells out that metadata can be used to extrapolate large amounts of personal information including “political opinions, sexual habits, religion or medical concerns”, that the two year retention period is unjustified, and that it is “very intrusive of privacy”. The report also cites the European Court of Justice ruling against the European Union’s similar “Data Retention Directive”.

“The Parliamentary Joint Committee on Human Rights has all but confirmed what experts in this field have been saying all along: data retention is disproportionate and unnecessary, it is a serious breach of human rights, and no case has been made for this mass surveillance proposal,” said Brendan Molloy, President of the Pirate Party.

“The Parliamentary Joint Committee on Intelligence and Security will hopefully recognise this farce for what it is. It has little do with national security, yet is extremely invasive, will effectively introduce a ‘surveillance tax’ for all Internet users, and will have a direct impact on freedom of expression as a result of the knowledge that everybody can have their position tracked and stored for two years. It is extremely draconian.

“This report provides of a glimmer of hope that Parliamentarians could come to their senses and block this fundamentally destructive proposal.”

The statement of compatibility with human rights provided with the Bill attempted to draw parallels between the effect of this Bill on privacy and that of court investigative methods. The Committee on Human Rights dismissed this claim, citing the difference between targeted and mass surveillance. The report also recommends significant changes to the oversight provisions in the Bill in an effort to reduce the amount of warrantless surveillance that would be introduced. The concerns expressed by various groups that the powers introduced by this Bill will be used for purposes other than those stated was addressed by the Committee, which recommended that restrictions be put in place to limit the use of data to serious crimes.

The two-year retention period was also brought into question with the Committee asking the Attorney-General to justify such a long time when the AGD’s own statement of compatibility states that data used under similar schemes was ‘frequently … less than six months old’. More pressing, however, is the lack of protection provided for professions where confidentiality is paramount, such as the legal and medical professions, and the report questions whether the Bill may affect obligations of professional secrecy.

“As we have previously stated, journalists and lawyers especially should be very concerned that such large amounts of data about their interactions can be accessed for two years without a warrant. Data retention breaks our justice system, weakens journalism and make our digital environment less safe, with literally nothing gained,” commented Mr Molloy.

The Pirate Party will be making a submission on the Data Retention Bill to the Parliamentary Joint Committee on Intelligence and Security and continues to actively campaign against the Bill. The Party recommends that any member of the public who wishes to fight this proposal should arrange a meeting with their federal MP and Senators.

Pirate Party volunteers have made submissions to several national security related reviews and inquiries in the last few months, and the Party has made over twelve submissions to inquiries and reviews in the last year alone[3].

[1] http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Completed_inquiries/2014/Fifteenth_Report_of_the_44th_Parliament
[2] http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Committee_Membership
[3] http://pirateparty.org.au/submissions/

The Government, law enforcement and intelligence organisations have repeatedly insisted that Australians have nothing to fear from data retention — they just want to collect “metadata” and not the content of communications. This is a disingenuous attempt at reassurance — “metadata” is data, pure and simple, as one German politician demonstrated.

The website[1], provided by Zeit Online, provides an interactive playback of six months of metadata Malte Spitz accessed from his telecommunications company from 2009, showing his near exact location, fully replayable.

“Across a six month period German politician Malte Spitz was able to use the data retained by his telco to track his movements around Europe. It was able to show how simply carrying a mobile phone with you reveals where you are at nearly all times. This is the sort of mass surveillance system the Australian Government is proposing,” said Brendan Molloy, President of the Pirate Party.

“The information they want retained reveals everything about the communication except the content — if you strip away the doublespeak it is data. This information is far from innocuous. It reveals locations, times and interactions. It can be used to create a picture of where everyone has been and who everyone has communicated with, and very precisely. If you sent a text message to your partner before boarding a plane and called them when you arrived they would be able determine what mode of transport you took based on the time and location differences between those interactions.

“No case has been made that justifies the expansion of law enforcement powers to include data retention. All examples used to jusify the introduction of data retention have been based on successes under the current system, disproving the necessity of creating a surveillance state in which even plaintiffs in civil cases such as copyright infringement will be able to access this data.”

The recently proposed data retention legislation will also have a chilling effect on freedom of expression and freedom of the press, with the stored data capable of identifying links between journalists and their sources. The Pirate Party strongly encourages journalists to speak out against the legislation which will put them and their sources at increased risk of prosecution.

“If you publish stories revealing corruption or abuse of powers, law enforcement and intelligence personnel will be able to access, without a warrant, details of who you are communicating with and where you and they were at the time. The risk of being caught will mean less people speaking up and providing information to journalists. Stories that are in the public interest simply won’t be written.

“This is an unmitigated attack on freedom of the press. No one will be safe from the prying eyes of the surveillance state,” Mr Molloy concluded.

[1] http://www.zeit.de/datenschutz/malte-spitz-data-retention