labor’s strange surveillance capitulation

It won’t make the front page but on 30 March, Labor’s deputy leader Tanya Plibersek quietly caved in on one of the most invasive of recent proposals for mass surveillance in Australia.

The mandatory data retention regime would compel phone companies and internet service providers (ISPs) to retain telecommunications data – “metadata” – for at least two years for the whole Australian population.

As Plibersek noted in her announcement, it is not the recordings of phone calls or content of emails that is proposed to be retained; it is data around these things. Who you called, and for how long; who you email, and the size and type of the attachments you send. If you carry a mobile phone, metadata can record your location every minute of the day.

The unprecedented invasions of privacy made possible by the proliferation of ever-more detailed clouds of metadata are a key reason why the revelations of US whistleblower Edward Snowden caused such deep revulsion around the world. This is one essential thread of Orwell’s waking nightmare 1984, brought into being through a mix of dogged persistence, bowties and bland euphemism.

The idea hasn’t come from nowhere: it was floated and rejected twice during the Rudd/Gillard years. It emerged into the public domain in 2009 with a leak to the Fairfax press that the attorney general’s department had coerced ISPs into a round of secret meetings to establish how expensive it would be to implement. I was able to initiate a Senate inquiry into the plan which flushed more details into the public domain, and in the ensuing uproar the plan was quietly withdrawn.

In July 2012, the data retention proposal merited a few sketchy lines in a discussion paper published alongside an inquiry by the Joint Intelligence and Security Committee. Data retention then inevitably became a focal point of public alarm, such that the Committee was unable to come to a consensus recommendation as to its merits. In the ensuing uproar the plan was quietly withdrawn, again.

But the attorney general’s department is nothing if not patient, and it’s hard to imagine a more pliable attorney general than senator George Brandis, whose first confidence-building initiative was to employ ex-ASIO director general Paul O’Sullivan as his chief of staff.

All of this makes Labor’s spontaneous capitulation to ever more invasive surveillance that much harder to understand. Data retention is not about targeted, evidence-based intelligence gathering. It is the indiscriminate collection of detailed, real-time metadata on everyone. It is not just for people suspected of serious crimes or political violence, and no judicial oversight is required for a proliferation of hundreds of agencies and local government authorities to get their hands on it. Because the access threshold is so low, there were more than 320,000 of these requests made of telecommunications companies in the last financial year, rubber stamped without a single warrant being issued. We don’t know how many times ASIO or the Australian Signals Directorate vacuum up this material, because they are exempt from the reporting requirements that apply to local governments or the federal police.

One such euphemism is that metadata snooping is about the “envelope” and not the content, and that these envelopes are so innocuous they should be open season for warrantless access by an unknown number of agencies. It’s a deliberately deceptive metaphor.

In 2009, German Green party politician Malte Spitz subpoenaed six months worth of these envelopes from his service provider, and mashed them into a google map. The result is breathtaking: you can watch Spitz’ entire life unfold in real time; everywhere he goes, who he calls, when he sends text messages, where he sleeps, when he jumps on a train.

Now imagine all of us mapped into this fine-grained simulacrum of social life on an industrial planet, all our social interactions through many degrees of separation, swarming around like microchipped pets under a gargantuan microscope.

Anyone who downplays the importance of assembling billions of these metadata “envelopes” either doesn’t understand the technology, or hopes to impede your understanding. We expect it from Brandis. We could have done without it from what remains of the Labor party.


First published at the Guardian Online on 1 April 2014