On Thursday, the Government introduced data retention legislation into the House of Representatives as the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014. The AFP has confirmed, even before the legislation has been voted upon in Parliament, that data retention will be used for copyright enforcement. The legislation also confirms that the exact location of mobile phone users will be stored as part of these provisions.
“There are far too many flaws in this legislation to enumerate,” said Brendan Molloy, President of the Pirate Party.
“There has been no discussion as to why the current retention order provisions are insufficient. This legislation is disproportionate and unnecessary. ‘Metadata’ is ill-defined in such a way as to contain so much information that it is effectively the content of the communication, insofar that it contains the context and location of all communications. This is a massive issue for journalists, whistleblowers, activists, and a whole host of other persons whose activities are in many cases legal but perhaps not in the interests of the state to let happen without some level of harassment.
“There are significant issues relating to cost and security of the data. Steve Dalby of iiNet said yesterday that iiNet would consider storing the data where it is the cheapest, which includes Chinese cloud providers. There will be a significant ‘surveillance tax’ introduced by retailers to cover the costs of storing this data that nobody wants stored.
“Now we have it admitted by the AFP today that this legislation will be used for something completely unrelated to national security: copyright enforcement. The legislation hasn’t passed and yet already the scope is creeping! They are taking away our right to free expression and privacy to protect the profits of a few large corporations.
The Pirate Party wishes to draw attention to the TPP ministerial meeting to occur tomorrow, 25 October 2014, and continues to reiterate the demand that the draconian text be made public.
Tomorrow, 25 October 2014, Sydney will host a meeting of trade ministers from countries currently negotiating the Trans-Pacific Partnership Agreement (TPP). The aim of the meeting is to conclude the “basic elements of the agreement before the end of the year,” despite the last four years of negotiations being fraught with fundamental disagreements. Of enormous public concern is the lack of transparency surrounding what is intended to be a comprehensive agreement: at this point in time, no drafts have been officially made available for public comment or consideration.
“Recent leaks show the negotiators have learned nothing from the public outcry over previous leaks. The negotiators are pushing ahead with paradigm-shifting intellectual property provisions in the interests of entrenched American corporations, going above the sovereign parliaments of their own nations. Once the document is signed, it is very unlikely to be changed, and very likely to be waved through Parliament with limited oversight. This is legislation through the backdoor; corporate capture of democracy,” commented Brendan Molloy, Pirate Party President.
“It is beyond time that the text was made public. We have seen the content of it through leaks, and what we have seen would have a significantly negative impact on everything from freedom of expression, access to knowledge and access to medicine, all in the interests of American corporations. This agreement is not in the national interest.”
A recent leak of the Trans-Pacific Partnership Agreement (TPP) draft intellectual property chapter shows that negotiators remain divided over key issues. The leak reveals that in May 2014 there was limited agreement on the intellectual property provisions, despite the negotiations being ongoing since at least 2008. The TPP is notorious for the secrecy of its negotiations and the exclusion of the public despite it being widely known that some corporate lobbyists have had access to draft texts and a strong hand in influencing negotiating positions.
Of concern are draft provisions that would substantially increase the cost of medical treatment, both domestically and in other participating countries, which demonstrates the strong lobbyist influence on the negotiations. Other provisions may expand Internet service provider surveillance of subscribers, expand what can be patented, and seriously undermine competition by strengthening monopoly rights.
“It is time for the game of secrecy to end. The negotiations seem to be going around in circles and be contrary to the stated positions of the negotiating nations. They fly in the face of expert opinions, and consultations thus far have been little more than shams,” said Brendan Molloy, Pirate Party President.
“Negotiating in this fundamentally undemocratic way will see the involved nations saddled with obligations designed by lobbyists for the benefit of lobbyists, and by the time we find out exactly what those obligations are it’ll already be signed and imposed upon us,” Mr Molloy continued.
Of enormous concern is the removal of an article that would ensure Article 31 of the TRIPS Agreement remained fully effective. Article 31 regards compulsory licences of patents to ensure national emergencies in developing countries can be effectively managed. Limiting the effect of Article 31 is likely to have extremely negative effects on managing local and global epidemics.
The Pirate Party made a lengthy submission to the Attorney-General’s Department last Friday, responding to the Department’s “Online Copyright Infringement” discussion paper. The submission highlighted a number of flaws with the discussion paper, such as reliance upon studies commissioned by copyright lobbyists, and also drew attention to the lack of government action on recommendations that could reduce online copyright infringement by improving prices and availability of digital content in Australia.
It also highlighted the lack of reliable and independent empirical evidence for the discussion paper’s proposals, and criticised attempts by copyright lobbyists to compare copyright infringement with terrorism or the distribution of child sexual abuse materials. The discussion paper proposes creating obligations for Internet service providers to cooperate with copyright holders, which may mean implementing a graduated response or “three strikes” scheme where Internet users are sent letters if accused of infringing copyright. It also proposes allowing copyright holders to seek injunctions requiring ISPs to block access to websites.
Mozart Olbrycht-Palmer, principal author of the Pirate Party’s submission, said: “The Government decided to focus its attention on changing consumer behaviour and our submission explains at great length why that approach just won’t work. If online copyright infringement is truly out of control, copyright holders only have themselves to blame. The reality is that increasing access and affordability of content will reduce online copyright infringement: just look at Steam, Netflix and Spotify. The discussion paper acknowledges this but its proposals are focused in entirely the wrong area.
The Pirate Party denounces any attempts to include certification provisions in the highly secretive Trans-Pacific Partnership Agreement (TPP). The United States, one of twelve negotiating nations including Australia, may be given the power to opt-out of the Agreement if countries do not implement the TPP according to the standards of the United States Trade Representative. This has been used by the United States to pressure other countries into adopting its interpretation of trade agreements.
These provisions give an inordinate amount of leverage to the US Government to pressure treaty partners, such as Australia, to alter and adopt laws that go beyond the negotiated text of the treaty. In practice this could result in a situation where the US Government and its advisors are approving, or even drafting, Australian laws to ensure they comply with the interests and expectations of the United States.
Brendan Molloy, President of the Pirate Party, commented: “This is an egregious overreach. I daresay that any Australian government that signs such an unbalanced agreement, which puts such an unequal share of power in the hands of a foreign entity, is guilty of betraying the interests of the Australian people. A partnership where all parties do not have equal power is not a partnership. By signing such a fundamentally unbalanced agreement, Australia would be granting the US significant control of our sovereignty, making us effectively a vassal of the United States.