War on privacy: committee sends Roxon back to drawing board

by Bernard Keane

source: Crikey

As Attorney-General Nicola Roxon prepares to head to the United States to further integrate Australia’s role in the War on Terror into the American security apparatus, the powerful Joint Committee on Intelligence and Security has knocked back her terms of reference for an inquiry into the further widening of intelligence-gathering laws, including the controversial data retention proposal.

The rejection is bad timing for Roxon, who wrote today in The Australian about her pending trip to the US for further meetings with US Department of Homeland Security head Janet “you cannot live free if you live in fear” Napolitano, who was recently in Australia.

Roxon’s reference to the committee included some proposals to strengthen privacy protections and streamline administrative procedures relating to warrants, which are separately identified as being supported by the government, but also invited consideration of wide-reaching expansions to the powers of security and intelligence agencies to: increase powers of interception; make it easier for ASIO to break into computers and computer networks, including those of third parties not targeted in warrants; facilitating the prosecution of anyone who names an ASIO officer; and, most controversially, a long-considered proposal from departmental bureaucrats to impose a two-year data retention directive on ISPs to record and store all Australians’ internet usage for government monitoring.

One problematic but easily remedied issue about the draft terms of reference was the reporting date of July 31, giving the committee just 10 weeks to conduct full-scale public inquiries into major changes to several pieces of national security legislation.

However, there are more substantive concerns among committee members, who decided to knock back Roxon’s initial terms of reference at a meeting on May 10. Crikey understands that while the committee has agreed in-principle to the inquiry, it is now considering an overhaul of the terms of reference. Committee chairman, Victorian MP Anthony Byrne, did not return calls this morning.

Roxon’s piece for The Australian today was a peculiar piece of national security proselytism, using the “Underwear Bomber Mark II” and his “sophisticated new bomb technology” as the basis for a “call for constant vigilance”. In fact, the most recent Yemeni “underwear bomber” plot was, like most domestic terrorist plots “thwarted” by the FBI in the US, a creation of governments — the “bomber” appears to have been an agent working for western and Saudi intelligence services who initiated the plot himself and elicited support for it from al-Qaeda operatives.

Putting aside the inconvenient problem that “underwear bombs”can’t bring down airliners, the main difference with FBI-initiated plots in the US was that, at least in this case, Western intelligence didn’t furnish the bomb as well as the bomber.

However, Roxon uses this as the pretext for calling for a range of expansions in security and intelligence powers. She wants to ensure “that Australia has a wide array of tools to assist law enforcement to prevent, detect and disrupt organised crime online” (the inevitable child p-rnography got a mention) and “improving the quality and quantity of evidence of cyber crime that we have access to by joining the US in acceding to the European Convention to Cybercrime”.

Did you spot that sleight of hand there? “Improving the quality and quantity of evidence” in the context of the European Convention on Cybercrime means giving foreign governments access to your telephone and internet user data. And we haven’t yet acceded to the convention because the government’s bill to enable it — which, embarrassingly, had to be redrafted because it would have actually prevented accession — is still before the Senate, after the government’s effort to rush the bill through parliament came unstuck amid complaints not merely from civil liberties groups and online activists, but ISPs who would have to foot the bill for it.

Roxon’s commitment to holding a transparent and public inquiry into possible expansions of surveillance and law enforcement powers is to be commended — it’s something markedly at odds with the cybercrime bill process and the usual legislative rush that accompanies expansions to intelligence and law enforcement powers. It will be even better if, as seems likely, the JCIS committee — which includes John Faulkner, Kevin Rudd, Andrew Wilkie and George Brandis — takes its responsibility seriously.

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