Australians should be prepared for threatening letters demanding they “pay up or else” for allegedly downloading movies online, following the Federal Court’s judgment in Dallas Buyers Club LLC v iiNet Ltd. The judgment, handed down this afternoon, means that Australians may soon be the target of “speculative invoicing” — sending letters that threaten legal action unless the alleged downloader pays a settlement figure.

Originally the respondent, iiNet, refused to hand over its customers’ details, believing they would be used as part of speculative invoicing, and its refusal prompted the litigation[1]. Although Justice Perram, in giving the judgment, reportedly stated that the letters will need to be cleared by the Court prior to issue[2], the Pirate Party remains concerned that this sets a dangerous precedent.

Pirate Party Secretary Daniel Judge commented: “This practice has been criticised strongly in the United Kingdom[3], and is predatory to say the least. Like scams, speculative invoicing targets thousands of people and extorts payment from the most vulnerable. In the UK, the accuracy of this approach in targeting people who actually infringed copyright has been criticised. Innocent users have been targeted as a result of the indiscriminate approach[4][5], and even copyright holder representatives have condemned speculative invoicing[6].”

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Today is a dark day for Australians and the Internet as the Labor Party caucus approves data retention[1] and the Coalition prepares to introduce misguided new legislation aimed at combatting online copyright infringement[2]. To encourage Australians to join us in fighting back, the Pirate Party is offering pay-what-you-want memberships with no minimum amount at http://pirateparty.org.au/join

Pirate Party Deputy President Simon Frew said: “The Government and the Opposition have effectively declared war on the Internet and war on our privacy. The Labor Party has rolled over on data retention, meaning all Australians will be subjected to mass surveillance until this appalling legislation is repealed.

“At the same time, legislation to give copyright holders an easy mechanism to get websites blocked will mean we are subjected to a censorship regime. The Government has opted for a long and pointless game of whack-a-mole — as soon as a site is blocked it will pop up in several new places and copyright infringement will continue.

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In a bid to garner support for data retention legislation, Tony Abbott announced that the scheme is vital in combating child abuse and other crimes. “Metadata and its retention is more important than ever if we are going to be able to track what criminals are doing,” said Mr. Abbott.

“This panicked grab for legitimacy highlights the government’s failure to understand the key flaws in the legislation, despite being made aware of them multiple times[1]. Making false claims that the scheme will greatly benefit the fight against child abuse does a disservice to the young victims of sexual abuse, and Australian society as a whole,” said Fletcher Boyd, Deputy Secretary of the Pirate Party.

The Coalition government has continually ignored calls for more protection in the scheme since right now there are no protections in place for everyday Australians. Forced two year metadata retention with no limits on use will inevitably violate the privacy of countless citizens. While Mr. Abbott claims to be fighting against child abuse, his legislation ignores the fact that the data collected could also be used in a wide variety of other cases. From perpetrating domestic violence to stifling the press, the grave implications of this legislation have been ignored.

On top of this, Mr. Abbott expects Australians to foot the bill for his plan. Telcos have estimated the costs of such a scheme will be upwards of $500m[2], a surveillance tax that will be passed on to consumers. The lack of consideration of data security in the bill will endanger private data even further. The chance of accessing such a large amount of data will be a target on the back of Australian ISPs. When coupled with the massive cost of storage, it’s likely that ISPs will turn to cheaper offshore solutions, leaving Australians further exposed and their data being outsourced to offshore entities.

In Pirate Party Australia’s submission to the data retention inquiry[3], Mozart Olbrycht-Palmer wrote, “Criminals (or potential criminals) have already mitigated any such surveillance through the use of encrypted, proxy and anonymizing services, thereby severely reducing the efficacy of data retention. Some criminals will be caught at the lower end of the scale, but they would have likely been caught anyway. Including everyone with a phone or Internet connection in a database of suspicion does not enhance civil and political relationships and responsibilities.”

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The Pirate Party is bewildered that Hotline Miami 2 is being refused classification and is therefore effectively banned from the Australian retail market[1]. While the Pirate Party does not endorse sexual violence, it is critical of the double standard by which video games are treated as inherently different to other mediums. It is unacceptable and unnecessarily paternalistic to deny adults access to content that would be permitted in other mediums.

With the introduction of an adult rating (R18+) for video games at the beginning of 2013 the community expected a sensible approach to the classification of games. Previously the highest classification level available for games was MA15+, and, due to the adult nature of some games, those that exceeded the MA15+ guidelines were banned from sale in Australia. Unfortunately games continue to be judged by a stricter standard and a number of games have been refused classification since then. Today we see yet another example with the banning of Hotline Miami 2.

“The Australian Classifications Board has a long history of banning films, video games and generally treating Australian adults as children,” commented Simon Frew, Deputy President of the Pirate Party. “There have been a number of films that have been banned over the last decade or so, but video games seem to attract undue attention from the censors. Games like Hotline Miami 2 are designed specifically for adults and adults should be allowed to choose the content they consume.”

The new classification scheme for video games was firmly seated in an acceptance of the fact that gaming now crosses all demographic borders and there are far more mature adults playing than there are impressionable children[2]. The new scheme fails to adequately accommodate the wide range of content available for the varying consumer tastes driving industry demand, and instead places a blanket ban on the legal sale within Australia of major international game titles.

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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].”

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