the day we fight back

11 February 2014: around the globe more than 6000 websites, with user groups ranging from sub-niche to hundreds of millions, are blacked out today. The cause is serious: government surveillance overkill that compromises privacy, the rule of law, journalism and democracy itself.

The date has a deliberate resonance for citizens of the United States, who have discovered that expansive powers granted to intelligence agencies in the wake of the 11 September atrocities have metastasized in casual violation of the US Constitution to the degree that even authors of the Patriot Act have condemned. Two years on from success against Sopa and Pipa in the US this mobilised community is taking on the next front in the battle for digital rights.

The date has an accidental symbolic appeal here in Australia too: it is the first sitting day of season 2014 for the Australian parliament. In contrast to the fierce debate raging in the United States, successive governments have ensured we have a different kind of blackout here in sunny Australia.

Tony Abbott’s government is applying the same infantile messaging tactics it applies to foreign policy nightmares like the conflict in Syria. According to Abbott and attorney general George Brandis, Edward Snowden is a traitor (baddie). Anything the US Government (goodie) does to silence the messenger – presumably up to and including the vivid daydreams of extrajudicial murder disclosed by NSA operatives – will be uncritically supported by team Abbott.

We urgently need to raise the IQ of the debate here. Australians have a special role to play in the campaign for strong digital rights: we are one of the Five Eyes countries that forms the core of the US Government’s invasive and unnecessary global spying program. In December 2013, the Australian Greens successfully initiated a Senate inquiry into the surveillance regime in Australia. This is a unique opportunity to establish how the system works, and how it’s failing us.

The first thing you discover when you dig into the laws of warranted telecommunications intercepts in Australia is how rigorous they are. Previous generations of legislators enacted a dense mesh of checks and balances, judicial oversight, and fine-grained annual reporting to keep these powers in check. For this reason among others, Australia is not a police state. If an Australian agency wants to listen in to your phone calls or read your email, the system is mostly targeted at individuals suspected of involvement in serious crime, overseen by judges and other authorities operating at arm’s length from enforcement agencies, and bounded by offices like the ombudsman to spot systemic departures from the rule of law.

The second thing you notice is that in the last decade or so, this warranted interceptions regime has been utterly wormholed, circumvented to the point of obsolescence. The advent of the smartphone, in ceaseless communication with GPS satellites and servers all over the world, and the rapid expansion of “big data” have resulted in staggering volumes of detailed information available to dozens of government agencies with a few keystrokes. The legal protections that apply to agencies wanting to listen in on your phone call are completely void when it comes to mapping your social networks, financial habits, medical conditions, and precise location everywhere you take your phone.

Intelligence agencies do not have to conform to even these restrictions, and deploy the “national security” trump card to justify remaining entirely outside freedom of information laws or the reporting obligations that other agencies have to deal with. Now “national security” is used to justify anything from tracking climate change demonstrators to spying on the cabinet deliberations of the East Timorese on behalf of the gas industry. Whether you’re trying to stop coal exports through the barrier reef or are a farmer trying to protect groundwater resources from fracking; we’re finding ourselves drawn ominously ever closer to the definition of terrorism, justifying the deployment of these highly invasive spying techniques.

The final straw for those who thought our legal framework had kept pace with the times came with the Snowden revelations: a vast, indiscriminate surveillance dragnet that has broken numerous domestic laws in the US and may be in violation of the constitution. What protection could possibly be provided by Australia’s quaint wiretapping laws, if we are complicit in shunting this much data to the US?

The debate in the US is robust in no small part due to the place their constitution holds in public discourse. It is highly valued across the political spectrum, and is the lynchpin for debates as diverse as gun control and political donations. Vocal dissent from the broad agreement that exists across the two major parties in the US for the surveillance of citizens keeps the issue alive. Australia’s debate is more subdued, with the government desperately hoping this will all go away.

It won’t. Today is the day we fight back – in the Parliament, on the internet, and in our communities.

Enough is enough

First published at the Guardian Online on February 11, 2014