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ASIC is completely out of control

By on May 22, 2013 in Freedom of speech, Liberal democracy, Technology and online rights

My ABC The Drum column this week is on the outrageous attempt by the Australian Securities and Investment Commission to censor the internet:

It’s an almost perfect illustration of regulatory mission creep.

Legislative provisions designed to only deal with the most extreme crimes are eventually used to pursue lesser offences. Given that this involved full-blown censorship – and censorship without oversight or appeal – ASIC’s actions are incredibly reckless.

Censoring the internet is a gross abuse of its status as an independent regulator.

Perhaps we could forgive an abuse of power if it was a one-time thing. But it’s part of a pattern.

NZ legislation allowing government to spy on its own people

By on May 7, 2013 in Personal liberties, Technology and online rights

In a remarkable attack on the right to privacy, the New Zealand government has introduced legislation into their parliament that would allow a government agency to directly spy on New Zealand citizens and residents. This follows similar moves in February by Australia’s foreign spy agency, to expand its powers into domestic operations.

The Government Communications Security Bureau (GCSB) is New Zealand’s primary foreign intelligence agency. Under existing legislation, the GCSB was only permitted to focus on foreign intelligence and cyber security, and was forbidden from spying on New Zealand citizens and residents. According to Prime Minister John Key, “I expect the GCSB to always operate within the law.”

In January 2012, online copyright pirate Kim Dotcom had his Auckland house raided by armed police after the GCSB illegally spied on him in a joint operation with the United States. Dotcom allegedly breached copyright laws by running online file sharing sites. In a review following the raid, it was found that GCSB operations had potentially illegally spied on 88 New Zealand citizens or residents over the past decade.

Now, rather than taking action against the GCSB for these illegal breaches, the government is expanding the agency’s powers by legislating to allow the GCSB to spy on all New Zealand citizens and residents.

According to reforms, the GCSB will only have to seek permission from the minister overseeing the agency, currently Prime Minister Key, before it can spy on citizens or residents. Labour leader David Shearer has attacked the legislation, stating:

The state should not extend its powers to spy on citizens lightly … [John Key] is asking New Zealanders to trust him to personally decide who can be spied on, despite his record of lax oversight of the GCSB.

The legislation provides for a massive invasion of people’s privacy. The lack of safeguards allows for significant abuse of this new spying power, as only the relevant minister must give permission.

UK Deputy PM blocks data retention laws

By on April 30, 2013 in Liberal democracy, Nanny State, Technology and online rights

In the UK, Deputy Prime Minister Nick Clegg has blocked plans by the government to store every individual’s internet and phone activity. The Gillard Government should follow the lead of Nick Clegg and drop its proposed data retention regime.

According to Clegg:

The problem is the answer that has been put forward: new powers for the government to compel companies to keep a record of every website you’ve visited, along with details of who you communicate with on social networking sites.

Under the former UK Labour government, powers were expanded to allow government storage of internet and email records. The Coalition Agreement signed between the Conservatives and Liberal Democrats, the basis of the Coalition Government in the UK, provided to end this “excessive intrusion.”

Thankfully, the Deputy Prime Minister has ensured that the draft Bill will not proceed.

There is a careful balance to be struck between security and individual liberty – a classic dilemma for all governments. But this Bill does not get that balance right.

Clegg provides the following reasons for his action:

…these powers would keep records on all innocent people, but would be easily avoided by the tech-savvy criminal.

…there is a very real risk that this legislation would be counterproductive.

…we would be setting a worrying international precedent.

The IPA will continue fighting the Gillard Government’s plan to introduce similar measures in Australia. We have previously highlighted the dangers of the proposed Australian data retention regime, which you can read about here, here and here.

The death of the Convergence Review

By on April 22, 2013 in Freedom of speech, Technology and online rights

A suggestion in the Australian today that the Convergence Review is pretty much dead in the water:

After more than two years of work, discussion and politicking, the federal government’s Convergence Review appears all but dead.

After Communication Minister Stephen Conroy’s suicide bombing of his media reform package last month, Media understands the Coalition is unlikely to adopt any of the review’s recommendations as policy platforms before the September 14 election or if in government.

In many ways, this is a shame, as I wrote here. The IPA has been arguing for more than a decade that technological necessitated a radical rethink of media regulation and law. There is simply no way that the old regulations – minimum Australian content requirements, for instance – could be imposed on the fluid and global internet.

Certainly, the Convergence Review itself failed to fully deal with these challenges, and got hopelessly distracted by the government’s regulate-the-newspapers zeitgeist. But despite this, the concept of convergence was, and still is, the main game.

In the Sunday Age yesterday I argued that technological change doesn’t merely destroy industries, it destroys legal and regulatory constructs. I wrote that while economies can adapt to change, laws are more inflexible:

One of the advantages of a free market is how it is able to adapt. Absolutely, those adaptations aren’t always pretty. The shift from a manufacturing to a service economy has been traumatic for some. When we can make custom industrial products in our own home, what happens to all the companies and workers doing that now? Yet we’ve been through this sort of rapid industrial change many times. And we always end up more prosperous.

Legal systems are not as flexible as the market. Politicians are backward-looking. Only this year was the classification system fixed to properly account for video games. Our laws haven’t caught up with the internet. Legislators have no idea what to do about music and movie piracy – our copyright laws are routinely ignored.

(At Catallaxy the IPA’s Julie Novak has some further thoughts.)

The examples I used in the column were Bitcoin and 3D printing, but the failure of the Convergence Review – surely one of the most ambitious government inquiries in recent years – demonstrates the point well.

The Australian government hasn’t even faced up to the challenges of the internet yet. How will they be able to deal with the bigger, more disruptive innovations around the corner?

Bureaucrats argue over how much privacy to take away

By on March 28, 2013 in Personal liberties, Technology and online rights

Some interesting documents regarding the government’s proposed data retention regime have been released following a freedom of information request. The documents reveal tensions within the government, with the Attorney-General’s Department-proposed scheme being resisted by the Department of Broadband, Communications and the Digital Economy. As the Australian Financial Review reports:

AFP commissioner Tony Negus told a parliamentary committee last year that police agencies would prefer a regime that required data to be stored for five years, or even no time limit.

However, the FoI documents reveal the DBCDE supported locking in the regime at six months – rather than two years or more – and that communications companies should not be required to keep any more information than they already did for business purposes.

The comments were made to the Attorney-General’s Department in response to an independent regulatory impact statement on the proposal, which similarly said the regime should only last six months without further proof of longer requirements.

The department said in the comments that the regime should “only apply to non-content data that service providers would otherwise collect for their particular business model – in other words there should be no requirement to collect/generate data if it is not required for business needs”.

As we’ve said in the past, a mandatory data retention regime is completely unacceptable. If organisations responsible for criminal investigations want access to private data they should use the usual processes: apply to the courts and obtain a warrant.

Proposed law to protect privacy introduced in US

By on March 26, 2013 in Personal liberties, Rule of law, Technology and online rights

Some good news on privacy protections in the United States. The Competitive Enterprise Institute has written about it here:

Today, a bipartisan group of lawmakers introduced the Geolocation Privacy and Surveillance (GPS) Act, which would limit the government’s ability to warrantlessly access location data derived from individuals’ smartphones and other mobile devices.

…

The Competitive Enterprise Institute, a public interest group, praised the GPS Act and urged Congress to enact this important legislation as a bipartisan solution to mobile privacy concerns.

“Outdated federal laws and confused court decisions have rendered Americans’ geolocation information vulnerable to warrantless government access,” said Ryan Radia, CEI Associate Director of Technology Studies.

…

The GPS Act would require law enforcement officials to obtain a warrant, issued upon a showing of probable cause, before accessing mobile geolocation information under most circumstances. At the same time, the bill contains an exception permitting geolocation information to be shared in the event of a bona fide emergency.

It will be interesting to see whether the bill passes.

The importance of a requirement that government officials obtain warrants before getting access to information can’t be understated. Judicial oversight of intelligence and evidence gathering provides protection against abuses of state power and helps to promote privacy in the face of government bureaucrats’ constant push for access to citizens’ private data.

This bill shows that such a push can be resisted.

It’s a shame the Gillard government here in Australia isn’t as enthralled by the same instinct to protect privacy. The government wants to impose a data retention regime that would force internet service providers to collect and store communications information on all their customers.

Conroy’s internet filtering scheme hits hurdle

By on March 25, 2013 in Freedom of speech, Technology and online rights

In November last year, I wrote about Communications Minister Stephen Conroy’s plans to force internet service providers to block websites that appear on Interpol’s “worst of” list. But a report on Delimiter suggests that at least one large ISP is simply refusing to comply:

The Australian Federal Police has revealed that its limited mandatory ISP filtering scheme based on a list of offensive sites supplied by Interpol has not yet been taken up by most of Australia’s ISPs, with only Telstra and Optus having implemented the filter so far and a further “large ISP” having flat out refused to comply with the project.

As I said last year, there are serious questions about whether the provision that Senator Conroy is relying upon can in fact be used for this purpose. Former Age political editor Michelle Grattan picked up my analysis at the time:

The Institute of Public Affairs, a free-market think tank, said the new policy ”may result in Australians having even more restrictions on their internet use” than under the filter proposal.

The director of the IPA’s legal rights project, Simon Breheny, said Senator Conroy planned to use section 313 of the Telecommunications Act to force internet service providers to block websites that appeared on international police agency Interpol’s ”worst of” list.

”If the minister always had the power to impose an internet filter without the need for new legislation, section 313 would have been used from the beginning”, Mr Breheny said.

We’ll be following developments in this area with great interest.

Data security breach highlights major flaw in data retention proposal

By on March 8, 2013 in Technology and online rights

If you need convincing that the government’s proposed data retention regime is a terrible idea, look no further than this report ($) in The Australian:

THOUSANDS of sensitive files including National Crime Authority intelligence on suspects in unsolved murders, secret informants, undercover agents, drug operations and police corruption have been publicly available after an error by Queensland’s Crime and Misconduct Commission.

The files, dozens of which have been reviewed at Queensland State Archives in Brisbane by The Australian in the past week, were the property of the Fitzgerald inquiry into corruption in the late 1980s and meant to stay secret until about 2055.

The files contain numerous unsubstantiated allegations of corruption, rigged trials, drug-smuggling and murders involving senior figures in business, the police, the judiciary and the underworld, some of whom are still prominent. Most of the material in the files was not aired at the Fitzgerald inquiry or in the subsequent criminal trials of people who were prosecuted.

Many confidential informants, protected witnesses, top police, Fitzgerald inquiry staff and investigators, legal and judicial figures, journalists and editors named in the documents are still alive. The files contain secret tip-offs from named informants about serious crimes.

This is an astonishing breach of confidentiality. And this is an organisation whose job it is to protect documents like this. The added concern when it comes to data retention is that the government is forcing companies that don’t have data security expertise to collect and store huge amounts of private information.

John M Green has written a very good article in Business Spectator today, highlighting this major practical problem:

But leaping from Brisbane to Canberra, this Keystone Cops debacle provides another stunning reason to oppose the federal government’s plan to force internet and phone companies to keep the public’s most private information for two years, sitting on their servers as data mines for spooks like these.

Simply, it now seems that no one can be trusted to protect this very private data, not even our most trusted investigative bodies.

It’s not just hackers, snoops and perves we the public have to worry about but, it seems, slack public officials expressly charged with keeping secrets secret.

The government’s proposed data retention regime is currently being considered by a joint parliamentary committee.