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

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

On Thursday, the Government introduced data retention legislation into the House of Representatives as the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014[1]. The AFP has confirmed, even before the legislation has been voted upon in Parliament, that data retention will be used for copyright enforcement[2]. 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.

“There is significant evidence to suggest that this legislation, which ensures that all persons in Australia will be under permanent and constant surveillance regarding all of the activities they conduct in the modern world, exists for nothing more than to track and control the entire population through the chilling effect of the knowledge that the Government will be storing your precise location data for two years, and more.

“This has very quickly gone from the fallacious argument of stopping Johnny Terrorist to being abused for civil proceedings such as divorce or copyright infringement. This legislation seems to go significantly further than a similar directive that was overturned by the Court of Justice of the European Union as being disproportionate.

“There is no justification provided as to why this data needs to be stored for every person in this country. Targeted surveillance with a warrant is already possible under current legislation. No exposure draft was provided because the Government knows that this legislation has no support and would be dead in the water if any real public consultation were to be undertaken.

“And the best part: there is still no definition of ‘metadata’ after six years of backroom consultations between the AGD and industry.

“We urge Labor and other Senators to block this abhorrent attack on free expression and liberal democracy which will cause untold damage to our culture and our judicial principals and practices. People have the right to be treated as innocent before proven guilty, and the right to live freely in a supposedly free society.”

[1] http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query%3DId%3A%22legislation%2Fbillhome%2Fr5375%22;rec=0
[2] http://www.gizmodo.com.au/2014/10/australian-federal-police-we-could-use-metadata-to-prosecute-pirates/

The Parliamentary Joint Committee on Intelligence and Security (PJCIS) has recommended that Parliament pass the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, despite acknowledging the inadequate amount of time given for public consultation[1]. The Committee recommended a number of amendments that primarily concern improving oversight of the additional powers being granted to law enforcement and intelligence agencies, but also clarifying certain terms and reducing the allowable period for detention without notification and delayed notification search warrants. However, no substantial amendments have been recommended.

Pirate Party President Brendan Molloy commented: “Increased oversight will cushion the impact of these reforms, but not in any significant way. We’re still going to see people being detained for up to two hours without notification of family members or other persons. We’re still going to have search warrants where the occupier of the premises won’t be informed that their premises have been searched for up to 12 months afterwards. We’re still going to have people visiting certain areas declared guilty until proven innocent. And we’re still going to see the thresholds for law enforcement and intelligence agency action reduced.

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