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Data Retention in Australia Problematic

Privacy advocates are concerned that Australia’s national security laws permitting hacking by intelligence agencies and retention of personal web and phone data are breaking new ground worldwide.

According to Carly Nyst, legal director of Privacy International, the standards being set by western governments around the world “are trickling down in a really dangerous way,” with Australia in certain respects leading the trend.

Back in September, the Australian federal government succeeded in passing the first wave of national security legislation, which introduces broad warrant powers for Asio (Australian Security Intelligence Organization; Australia’s national security service) to infiltrate and modify computers. A second wave of legislation, which relates to other police and Asio powers, is currently being considered by a parliamentary committee, and a third is likely to be introduced, relating to mandatory data retention of phone and internet records.

According to Nyst, “In some senses, particularly with the computer access warrants, Australia is leading the trend. The Asio computer access warrants is a really frightening step and one that seems to have gone by without the blink of an eye. I think that’s something we’re going to see that increasingly common in other countries now. We’re very concerningly heading in a direction in which the internet is seen as a place in which bad things happen and is almost a conductor of illegal activity.”

Of course, the federal government has argued that the first wave of national security legislation is a necessary update of the powers of Australia’s intelligence agencies. The immigration minister, Scott Morrison, a member of cabinet’s national security committee, commented that Australia needs “next-generation laws to deal with next-generation terrorists.”

The First Wave

The bill passed in September made several broad changes to Australia’s intelligence gathering apparatus. It introduced a class of “special intelligence operation” for Asio missions where intelligence officers can gain immunity from using force or committing other offences. Reporting on these operations – which could foreseeably lead to situations where a public disclosure would be in the public interest – could land journalists and whistleblowers in jail.

The bill afforded Asio new powers, including the ability to obtain massive warrants for effectively the entirety of the internet. They also create new powers for Asio to conduct “optical surveillance” without a warrant. There are also many other small expansions that lead to a general widening of the powers of Australia’s intelligence agencies.

Data Retention: A Necessary Evil?

The looming third wave of national security laws – expected to relate largely to mandatory data retention – are also going against the trend of many European nations, where data retention laws have been struck down, or subject to harsh public backlash.

“Australia’s actions are reflective of what most countries would like to be doing. But I think that many are realizing the real risk that they’re placing to personal privacy, and it’s a real shame that Australia seems to be ignoring that aspect of it altogether,” commented Nyst.

Australia’s attorney general, George Brandis, has said that mandatory data retention was necessary because of its value as an investigative tool for law enforcement agencies. The federal government has circulated a proposal with industry groups that would require telecommunications companies to retain certain types of phone and web data for two years. S

However, Jon Lawrence, executive officer of Electronic Frontiers Australia, said there was no need for the government to rush through legislation about data retention without going through a proper consultation process. “The problem that they feel they need to fix with this data retention legislation is by no means urgent. To try and wave it through under the current terror emergencies… is really quite dishonest and I think the government needs to be called on that. We really need Labor to stand up on this one and say ‘look, this needs proper, comprehensive, time-consuming scrutiny,’” Lawrence commented.

Summary

Back in September, the Australian senate passed a bill that dramatically expands the powers of intelligence agencies, whilst at the same tie creating new offences for disclosing information about the operations they will undertake with these new powers. This is just the first of a three revamps of privacy legislation in Australia.

CIPP Exam Preparation                                      

In preparation for the Foundations exam, a privacy professional should be comfortable with topics related to this post, including:

  • Modern privacy principles – common themes among principles/frameworks (I.D.b.)
  • Jurisdictions – Australia (II.A.g.)
  • Sectors of privacy law – government (II.B.f.)
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