Data retention ruling is not an invitation to governments

The Pirate Party renews its calls for the Government to abandon the pursuit of mandatory data retention following comments from the Attorney-General that data retention is under “active consideration”[1]. The Attorney-General also stated that data retention is “the way western nations are going.”

Pirate Party President Simon Frew commented: “What the Attorney-General has essentially said here is that everyone else is doing it, therefore Australia should too. This is abysmal reasoning in light of the thorough criticism provided by the Court of Justice of the European Union earlier this year, in a judgment that overturned the EU’s Data Retention Directive. The Court overturned the Directive precisely because it violated fundamental rights. That was not an invitation for law makers to find a different way of implementing a similar regime. The failure of the Data Retention Directive should serve to deter governments from implementing mandatory data retention: that level of indiscriminate intrusion into people’s privacy is unacceptable.

“The Attorney-General has also stated that privacy intrusions for the purposes of law enforcement should not be disproportionate[2]. We put it to the Attorney-General that data retention is disproportionate. How on earth could it be considered proportionate to store all information about who is contacting who, when they are speaking, for how long, and where they are? A society under constant surveillance is not an appropriate goal.

“The Government and its various agencies continue to draw a false distinction between so-called “metadata” and “content” to reassure people that the content of their communications remains private. Content is useless without knowing who sent it and who received it. On the other hand, knowing who is talking to who allows the Government to map out complex webs of relationships. Locational data allows them to track patterns of movement. We shouldn’t kid ourselves about who is accessing this data either: current requests for stored data are not limited to police forces and intelligence organisations. Access to stored metadata is provided to a myriad of Government agencies, including the Taxation Office, the Department of Human Services, the former Department of Immigration and Citizenship, and even local councils[3]. And they are doing this now without obtaining a warrant. These agencies, but in particular law enforcement and intelligence, now want that data to be stored by telecommunications providers for a minimum of two years.

“We also put it to the Attorney-General that his role, and the role of his department, is not to act as a lobby group within government for the benefit of law enforcement and intelligence agencies. The Attorney-General’s Department exists to regulate these agencies and ensure that their powers do not exceed what is genuinely necessary for the prevention of crime. We have seen too frequently in recent years the Attorney-General, whoever they are at the time, stand up in Parliament as a mouthpiece for the very agencies they are meant to regulate.

“As stated: the ruling of the Court of Justice should serve to outline the limits of appropriate privacy intrusion. Giving ASIO, the AFP, and other agencies this power in Australia is entirely disproportionate, and the Attorney-General should not be advocating this course of action on their behalf.”