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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In response to the Senate’s passing of the National Security Legislation Amendment Bill (No. 1) 2014 last Thursday, the Pirate Party has updated its policies to specifically oppose the Bill and support its repeal in the likely case where the lower house also approves it in the coming days[1].

The Bill makes major amendments to the ASIO Act, giving ASIO the ability to access, modify, copy and delete information on computers. ASIO may also be able to apply for a computer access warrant broad enough to cover every device on the Internet at once. Other amendments will introduce tough sentences for journalists and whistleblowers who report or disclose sensitive information, even if it is in the public interest.

The legislation also grants blanket immunity from prosecution for many illegal acts undertaken as necessary under a “special intelligence operation”, effectively granting ASIO unprecedented powers without the necessary checks and balances required by a legitimate liberal democracy.

Party President Brendan Molloy commented: “Labor has farcically waved through some of the most onerous legislation of the last decade with little more than a rubber stamp, as the Liberal Party whips up yet another fear-based storm of ‘national unity’ with insufficient evidential basis. This legislation criminalises journalism and whistleblowing, regardless of the public interest, while effectively granting ASIO agents the power to do anything they please.

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Australians have just suffered an enormous blow to their freedoms with the Senate passing legislation massively expanding ASIO’s surveillance powers and ramping up penalties for journalists and whistleblowers who report on or expose unlawful intelligence gathering operations. The National Security Legislation Amendment Bill 2014 (No 1) gives ASIO the ability to obtain a single warrant that could permit access to any device connected to the Internet, as well as the power to add, remove, modify and copy any data on those devices[1].

The Pirate Party is apalled that the Bill passed the Senate last night. The Bill gives vast new powers to spy agencies, attacks journalism and is a bigger threat to Australian democracy than any terrorist organisation. These are unprecedent surveillance powers, but are just the tip of the iceberg.

The Pirate Party’s Deputy President Simon Frew commented: “Parliament has just created what could be the broadest, most open-ended warrant system ever conceived. Our ‘representatives’ have deliberately avoided defining key terms, such as ‘computer’ and ‘network’, and refused to restrict the number of devices that could be accessed, which leaves us with a warrant that potentially covers the entire Internet. ASIO operatives will be permitted to access third party computers they think might help investigations, and they will be able to modify the contents without the owner’s knowledge. We simply can’t take our privacy for granted anymore.

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The Pirate Party is critical of the Government’s secrecy surrounding its most recent discussion paper on data retention. While the public is yet to see a formal proposal, telecommunications providers were given confidential advanced copies last Friday[1].

Pirate Party President Brendan Molloy commented: “No reason has been given for why the public must remain in the dark. This is a fundamentally undemocratic approach that excludes the major stakeholder — the Australian public. Botched media interviews and confused, conflicting statements over the past weeks have not provided any reassurance to Australians that the Government is competent enough to understand the enormous implications data retention has for our privacy. This is a highly controversial policy, and one that has already been rejected in the European Union precisely because it threatens privacy to such an unreasonable degree[2]. It is a complex area that needs great consideration and maximum public participation.

“No justifiable reason to store information that reveals individuals’ locations has been provided, let alone allowing access without a warrant. The Pirate Party’s position has been and continues to be that the threshold for access to stored data under existing arrangements is already too low, and must require a warrant. This extends to any further proposals.

“It also seems, despite the Attorney-General dismissing the suggestion, that the storage of information relating to download volumes is for the benefit of the copyright lobby. This was not on the cards previously, and we cannot fathom what use this information would be to the investigation of terrorism and other serious crimes.

“To mandate the retention of such vast quantities of information on all Australians is not a proportional nor necessary response to the perceived threats. The Attorney-General must immediately release this document in full, as well as future documents. Australians at large are the biggest stakeholders in these proposals, and have the right to be informed.”

[1] http://www.smh.com.au/digital-life/digital-life-news/data-retention-discussion-shrouded-in-secrecy-20140826-108fdr.html
[2] http://curia.europa.eu/jcms/upload/docs/application/pdf/2014-04/cp140054en.pdf