Data-retention or thinly veiled draconian push

Refusing to sit idly by and allow basic rights and freedoms to be trampled in the push I wrote about recently, I decided to exercise that strange ‘right’ to complain to ministers who are supposed to represent us. I decided to write an email. I sent this email to the majority of senators and ministers who sit in the Australian parliament; this is despite the extreme difficulty of operating the online contact form on the Parliament of Australia when they did not provide email address.

Date: Tue, 07 Oct 2014 22:05:50 +1030
Subject: Data-retention or thinly veiled draconian push

Dear Sir or Madam,

I am deeply concerned by the totalitarian nature of recent Australian government action. In particular the government’s draconian restrictions on privacy and free speech under false pretexts of fear and ‘terror’. The very dictionary definition of terrorism includes intimidating a population for political gain. This government is dragging the Commonwealth of Australia into the realm of dictatorships, criminal states and those with highly questionable human rights records. Our conduct parallels that of nations from China to Russia to Iran to North Korea. The action of this government lays shame to our anthem - ‘for we are young and FREE’ - and our national standing. With the horrendous anti-terror legislation that has already passed with disappointing bipartisan support, it seems all but certain the government’s clumsy data-retention bill will pass, furthering our decent into a 1984 surveillance state. If the bill was not shocking enough, the shameful inability for our Dear Leaders to so much as explain what they think they are talking about should refute any standing the bill might have. I urge you to save whatever measly freedoms and rights we have left and resist this appalling push. Heck, I beg you to do just that. I am not afraid of terrorism; I am afraid of our government.

Regards,
Tom Thorogood.

I even received a few responses, some more positive than others.

The first response I received from Clive Palmer’s office:

From: Palmer Fairfax <Palmer.Fairfax@palmerunited.com>
Date: Tue, 7 Oct 2014 23:58:29 +0000
Subject: RE: Data-retention or thinly veiled draconian push

Dear Mr Thorogood

Thank you for your recent email. I will ensure that the information contained is brought to the attention of Mr Palmer and his supporting senators for their review, for when next in a sitting meeting.

We appreciate you taking the time to write to Mr Palmer to share your views and concerns on this important matter. A strong democracy requires constant feedback from its people about the issues that concern them.

Please be assured Mr Palmer is doing everything he can to make Australia a fair and prosperous place for all.

Kind Regards

Craig Morgan
8 October 2014
Office of Clive Palmer MP
Member for Fairfax

17 Southern Drive Maroochydore 4558
palmer.fairfax@palmerunited.com
(07) 5479 2800

The second from Nick Xenophon’s ‘Electorate Officer’ (I’m really not sure what that title means) – a very positive response and definitely a senator to get behind:

From: “Pace, Rachel (Sen N. Xenophon)” <Rachel.Pace@aph.gov.au>
Date: Fri, 10 Oct 2014 05:18:31 +0000
Subject: RE: Data-retention or thinly veiled draconian push

Dear Tom

Thank you for your email to Nick Xenophon. Nick is currently out of the office and has asked me to respond on his behalf.

Thank you for taking the time to provide Nick with your concerns in regards to the National Security Legislation Amendment Bill (No. 1) 2014. I have passed on your comments to Nick and his advisers for their reference and consideration.

Nick is deeply concerned that this bill contains provisions relating to the disclosure of information that could seriously limit the operation of the media. Nick agrees with concerns raised by the media industry that the new offence would undermine the vital role the media plays in the healthy democracy of scrutinising government and its agencies. During debate on the bill, Nick moved amendments that would have included the public interest as a specific consideration for Courts during sentencing for this offence, in an attempt to mitigate its potential impact. Unfortunately, neither the Government nor the Opposition supported these amendments.

I have attached a copy of the speech Nick has made on this issue, which further outlines his position.

Thank you for taking the time to write to Nick.

Kind regards

Rachel Pace | Electorate Officer | Office of Nick Xenophon, Independent Senator for South Australia
Level 2/31 Ebenezer Place, Adelaide | TEL: 08 8232 1144 | F: 08 8232 3744 | www.nickxenophon.com.au

The information contained within this email may be confidential and/or legally privileged. If you are not the intended recipient, access to it is unauthorised and any disclosure, copying, distribution or action taken or omitted to be taken in reliance on it is prohibited and may be unlawful.

The third from Senator Scott Ludlam – very positive and a good position from a major/minor party:

From: “Ludlam, Scott (Senator)” <Senator.Ludlam@aph.gov.au>
Date: Mon, 20 Oct 2014 06:20:10 +0000
Subject: RE: Data-retention or thinly veiled draconian push

Hello Tom

Thanks for contacting me about data retention and electronic surveillance. We regard these issues as highly important, and I appreciate the effort you took in writing to me about them.

The view of the Australian Greens on electronic surveillance is enshrined in the policy which we took to the 2013 Federal Election. You can find the full document on our website, but in short, it states that the Greens want to ensure Australians’ digital privacy rights are protected and maintained:

http://greens.org.au/surveillance

The Greens support intelligence gathering powers that are targeted and proportionate, without indiscriminately placing all Australians under surveillance.

I am extremely concerned about the Government’s recent proposal for sweeping new data retention powers for government agencies. I have repeatedly called upon the Government to unequivocally reject mandatory telecommunications data retention and accept the overwhelming public opposition to any such proposal.

I am personally passionate about this issue and have spoken extensively about it in the media as well as in the Senate. You can find a speech I recently about this issue here:

https://www.youtube.com/watch?v=d7yvLDWbGzM

I have also kicked off a public campaign to #stopdataretention. You can find more information about that here:

http://junkee.com/its-time-to-stop-the-governments-data-retention-laws/42651

I have also publicly warned both major sides of politics that they are on notice: If they try and legislate a mandatory data retention policy into existence, they will become the target of an enduring campaign by organisations across the political spectrum to block it or get mandatory data retention repealed.

If you are also passionate about this issue, I would recommend you get involved with organisations such as the Greens which are speaking up about these matters, as well as communicating with other parliamentary representatives. It is only through speaking up that we can protect our rights.

Kind regards

Scott

Senator Scott Ludlam
8 Cantonment Street Fremantle
(08) 9335 7477
www.scottludlam.org.au

I included a bit of meta-data in there to fit with the theme of this legislation.

I also received two typed letters, one from my local MP Matt Williams and one from Senator the Hon Fiona Nash, both Liberal National members and neither positive. The first from Matt Williams MP reads:

MATT WILLIAMS MP
Federal Member for Hindmarsh

16 October 2014

Mr T Thorogood
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Dear Mr Thorogood,

Thank you for your email.

Your correspondence is appreciated and I thank you for taking the time to contact your local MP with your concerns. As the elected Federal Member for Hindmarsh, I am committed to representing and considering the many viewpoints of the people of Hindmarsh.

I note your comments and objection to changes to new counter-terrorism measures. Firstly, let me state - one of the highest priority of government is the safety of our community.

Regrettably, at home in Australia and around the world there are people who would do us harm.

New counter-terrorism measures recently introduced into Parliament will strengthen our counter-terrorism preparedness.

We are providing $630 million to support our police and security agencies with more resources to the Australian Federal Police, ASIO, ASIS and our Customs and Border Protection Service

In response to this threat - in responding to the threat of extremism - we are doing everything we humanly can to keep our community safe

This Government will continue to build the safe and secure Australia that everyone wants.

With regards to your concerns with the National Security Legislation Amendment Bill (No 1) 2014, the Bill contains a package of targeted reforms to strengthen the legislative framework governing the activities of the Australian Intelligence Community. It implements the Government’s response to the recommendations in Chapter 4 of the 2013 bipartisan report of the Parliamentary Joint Committee on Intelligence and Security (PJCIS) on potential reforms of Australia’s national security legislation.

It is imperative that Australia’s statutory framework keeps pace with the contemporary and evolving security environment, including the involvement of terrorist organisations in civil conflicts or insurgencies, such as in Syria and Iraq, and the engagement of Australians with these organisations, the threat of ‘home grown’ terrorism and the rapid developments in information and communications technology, particularly online, which have led to increased use of technology by persons of security concern to organise and evade detection.

For your information, the PJCIS comprehensively rejected the suggestion that the amendments will give ASIO infinite ability to access Australians’ computers.

The Committee unanimously endorsed the need for ASIO to access computer networks in accordance with a warrant, for the purpose of obtaining intelligence that is relevant to a security matter specified in the warrant.

ASIO’s warrant-based computer access powers are necessary, appropriate, and caveated by extensive safeguards including Ministerial authorisation of warrants, in accordance with rigorous statutory criteria, specifically that the Minister:

  • can only issue a warrant if he or she is satisfied that there are reasonable grounds for believing that access to data would substantially assist in the collection of intelligence that is relevant to a specific security matter
  • can only authorise ASIO to use a computer to gain access to data that is relevant to the specific security matter in respect of which the warrant issued. For example, if ASIO is interested in a particular target, ASIO can only access the network the target is using to gain information relating to that target.
  • can also impose any conditions or limitations on a warrant has (sic) he or she sees fit.
  • Oversight of the Inspector-General of Intelligence and Security.
  • The obligation on ASIO to adhere to the Attorney-General’s Guidelines which require ASIO to use, wherever possible, the least intrusive techniques of information collection before more intrusive techniques are used.
  • Strict, statutory limitations under the ASIO Act on the purposes for which intelligence may be used and communicated.

If a person is concerned that ASIO has accessed their computer, or otherwise engaged in inappropriate conduct, they are able to make a complaint to the Inspector-General of Intelligence and Security and measures are in place for people who suspect that ASIO has engaged in criminal activity can report this to the Australian Federal Police.

It is very important to note that this law only relates to 'special intelligence operations’. A special intelligence operation involves the most sensitive intelligence matters, including for example an operation to infiltrate a terrorist organisation.

Finally I enclose a copy of an opinion piece published in The Australian by Attorney General Senator the Hon George Brandis QC, which I believe explains the importance of this Bill.

I trust this information is of assistance. Once again, thank you for writing to me regarding this important matter.

Yours sincerely,

[signature]

Matt Williams MP
Federal Member for Hindmarsh

Shop 2/670 Anzac Highway, Glenelg East SA 5045 Phone 08 8376 9000 Fax 08 8376 7888
Email matt.williams.mp@aph.gov.au Web www.mattwilliamsmp.com.au f www.facebook.com/matt.williamsmp

The attached piece was ASIO powers are no threat to journalists, The Australian, Australia, 14 Oct 2014, by George Brandis (paywall).

The second letter I received from Senator the Hon Fiona Nash reads:

Senator the Hon Fiona Nash
Assistant Minister for Health
Senator for New South Wales
Deputy Leader of the Nationals in the Senate

23 Oct 2014

Mr Tom Thorogood
██████████████
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Dear Mr Thorogood

Thank you for your correspondence of 7 October 2014 expressing your concerns over recent Government actions, and in particular relating to data retention.

The value of telecommunications data in protecting public safety is indisputable. The unfortunate reality is that a small number of people in our society misuse modern communications technologies to organise and carry out serious criminal activity and to undermine our national security. As such, the records kept by telecommunications companies about the services they have provided have long been vital information in law enforcement and national security investigations. It is not an exaggeration to say that telecommunications data is used by Commonwealth, State and Territory agencies in virtually every serious criminal investigation, such as murder, rape and kidnapping. It is also central to almost every organised crime, counter-espionage, cyber-security and counter-terrorism investigation. This information routinely assists agencies to identify suspects and their associates, rule innocent parties out from further investigation, and to build criminal cases.

However, ongoing changes to the Australian telecommunications industry mean that companies are keeping fewer records about the services they provide, and are keeping those records for shorter periods of time. In June 2012, the bipartisan Parliamentary Joint Committee on Intelligence and Security (PJCIS) released a report concluding that these changes are resulting in ‘an actual degradation of the investigative capabilities of the national security agencies, which is likely to accelerate in the future’.

Against this background, the Government has undertaken to ensure that the limited information currently accessed to support investigations into serious offences and security threats continues to be available into the future.

The international experience demonstrates that a carefully crafted data retention regime can prevent serious harm to the ability of law enforcement and national security agencies to protect public safety. A recent EUROPOL child exploitation investigation (Operation Rescue) provides a valuable comparison. Child exploitation investigations rely particularly heavily on access to telecommunications data as perpetrators primarily share information online, meaning that little physical evidence is often available. 371 suspects were believed to be in the United Kingdom (UK). Using retained telecommunications data, UK authorities were able to positively identify 240 suspects, leading to 121 arrests and convictions. In contrast, of the 377 suspects believed to be in Germany, which does not have a data retention regime in force, German authorities were only able to identify seven, and were unable to obtain sufficient evidence to arrest or convict a single person.

I appreciate your concerns about the potential for data retention to impact on privacy and civil liberties. Privacy, safety and security are fundamental to our democratic society. As such, the Government is committed to ensuring that access to telecommunications data remains subject to strict controls and independent oversight.

Under the current data retention proposal, the telecommunications data will continue to be held by telecommunications industry, not by Government. I can assure you that agencies will continue to be permitted to access this data from industry only on a case-by-case basis where it is reasonably necessary for a prescribed purpose, such as part of a criminal investigation. The power to request data is currently limited to senior officials of law enforcement and security agencies, who are required to consider the privacy impact of their requests. The Government is also exploring a range of options to strengthen safeguards around the access to and use of telecommunications data.

It is important to understand that data retention obligations will not apply to all metadata. The Government is consulting with a range of stakeholders to determine what types of data should be kept, based on law enforcement and security benefit, the privacy impact, and the cost of retaining each type of data. The final data set will be set out in legislation, however I can confirm that web-browsing data (information about which websites or IP addresses a person has visited) will not be included within any data retention scheme.

I do appreciate you taking the time to provide me with your views.

Yours sincerely

[signature]

Fiona Nash
CT20141013

Parliament House Canberra ACT 2600 Telephone: (02) 6277 7440

I also contacted the PM himself and I am dutifully awaiting his reply 😉.

I for one have taken many extra measures to protect my privacy and security – clearly I am now ‘[a person] of security concern’ 😄 – amongst the measures I have taken include employing a Swedish VPN. My biggest concern from here on in is whether my email provided by the wonderful FastMail – an Australian company – can be trusted to keep my communications safe with the growing threat of fear and mis-information surrounding the Government’s push to spy on us.

I have gained three things from this legislation:

  1. The knowledge that I’m not safe in my own country from my own Government,
  2. The knowledge that Australian companies can only be trusted with extreme scepticism and caution when it comes to holding our data,
  3. The imperative to move to a more sane and proportionate country that respects rights and freedoms has grown.

I urge everyone to contact ministers and senators whether they are local or not. I do not believe we will win. I am convinced this will pass but it is nonetheless vital that we stress to our politicians that they cannot treat us like criminals and expect us to take it lying down. It is vital that we do all we can to Stop the Spies.

As I said in my original email, I am not fearful of the terrorist, I am not fearful of the murderer, I am not fearful of the bogeyman. I am fearful of our draconian Government. And before all else, before all rights and freedoms, it is paramount that no man should live in fear of his own Government.