Data retention — great news for criminals and foreign companies
There are two clear winners from Labor’s decision to cave in
to Tony Abbott’s terrorism and child porn hysteria and wave through
Australia’s biggest-ever mass surveillance scheme: criminals and
overseas communications providers.
The copyright cartel might count itself a winner as well,
although the extent to which that is true now rests with the
Attorney-General’s Department and the government’s legislative drafters.
As Crikey has explained ad nauseam, data retention
won’t work to improve crime clearance rates. We know that because in
several countries overseas both data retention and more far-reaching
surveillance schemes have been demonstrated not to help the cause of
fighting crime and terrorism. But why will crooks and terrorists benefit
from data retention? Data retention will generate tens of petabytes of
data. The problem with more data available to authorities is that,
inevitably, it will lead to more “false positives”
— potential leads for investigators and counter-terrorism agencies that
require investigation, but which turn out to be dead ends (although, in
one case, not before an academic spent three weeks behind bars
after his family was held at gunpoint). For a resource-constrained
agency, investigations that lead nowhere are a misallocation of precious
time, money and staff that could be better directed at pursuing real
perpetrators. Just ask the Danish police, who complained of being overwhelmed with information from the Danish data retention scheme.
The other big winners will be foreign companies that offer
encryption, anonymisation and ephemeral message services. VPN companies
in particular must be delighted with the imposition of data retention,
since it will encourage further mass market interest in Australia in
their services as Australians decide it’s time they went dark (not to
mention enabling them to access US-only media services). But services
providers who offer encryption will also benefit — Google, for example, is moving to offer end-to-end encryption on Gmail. Ephemeral message apps are also growing rapidly in popularity
(politicians have started using Wickr to message each other, while
imposing data retention on the rest of us — and if Luddite politicians
are using it, you think criminals aren’t?).
How do we know this shift to more encryption will happen?
Because it already has, according to the Public Service’s scopophiliacs,
the AGD, who told JCIS that the problem of “[losing] reliable access to the content of communications” has worsened since “the Snowden disclosures”.
Data retention will simply encourage more people to hide
their personal data from — literally and figuratively — unwarranted
surveillance, thereby making the problem data retention is intended to
address worse not better. Of course, that’s not a problem for
security agencies, because as per AGD’s invocation of the growing use of
encryption as justification for data retention, that will merely
provide the basis for further demands for surveillance powers. Data
retention will not be the last attempt to expand mass surveillance in
Australia; agencies will demand, and get, more and more power to monitor
As for the copyright cartel, data retention should prove a
winner for them, because it will provide a trove of data that they can
access using discovery and subpoena powers in civil litigation to pursue
file-sharers foolish enough not to use a VPN. It will also be used by
the Australian Federal Police, which lately has been at pains to insist
it would not be used to go after file-sharers, but which can’t undo the
damage caused by the honesty of AFP Commissioner Andrew Colvin himself,
who admitted in October “illegal downloads, piracy, cybercrimes,
cybersecurity. All of these matters, our ability to investigate them is
absolutely pinned on our ability to retrieve and use metadata.”
There’s a fly in that particular ointment. The committee
recommended that data retained solely for the purposes of the data
retention scheme not be accessible to civil litigants, such as the
copyright cartel. However, it suggested the Attorney-General be given a
regulation-making power to provide for exceptions to that prohibition.
Given his track record in bending over backwards for the copyright
cartel, no one seriously expects that George Brandis would refuse a
request from his good friends at News Corp or Sony to enable access to
the vast trove of data.
As for consumers — well, we’re the big losers. We’ll have to
pay a surveillance tax for the privilege of being spied on by our own
government, through both taxes and higher ISP costs to fund this vast
scheme. And when — when is the correct word, not if —
our data is stolen by hackers, there’s not even a guarantee we’ll even
be told about it — there’s no mandatory data breach notification system
in Australia, though JCIS wants one legislated sometime this year.
Welcome to the world of mass surveillance — a world where
those with nothing to hide have plenty to fear, and criminals and
terrorists can feel more secure than ever.