With the passing of the new data retention legislation in Parliament this week, RMIT’s Dr Mark Gregory gives us the details on what this means for Australians.
What is your understanding of the Federal Government’s new metadata laws?
The government appears to be ticking a number of boxes that the US government and multinationals have demanded if the Trans-Pacific Partnership is to go ahead.
Serious criminals and terrorists will not find the metadata laws anything other than a minor hindrance, but the metadata laws will allow the US media industry to target Australians that download movies and music illegally.
A better approach would be to force US companies to release content here when it is released in the US and at a price that is comparable to what is paid in the US.
Will the metadata laws help catch criminals or terrorists? Only if they’re lazy or dumb.
What types of data will be retained under this new scheme?
There has been a lot of concern over what constitutes metadata and we won't know for some time, as the legislation will provide some flexibility for the actual metadata to be captured and stored to be refined.
The idea is to capture information about what you connect to, how often and when, but not to capture the contents of what you're doing; such as the contents of webpages, online conversations, chat sessions and so on.
What makes the new law different to the current data access laws?
The new laws remove key checks and balances normally associated with gathering evidence, and opens the door for your metadata to be collected and used against you in civil court cases, which is something the current laws do not allow.
This open access to your metadata has been given to a wide range of government, semi-government and local government organisations and private companies that seek access to the metadata without the need for a warrant in many cases.
This means Australians now have no privacy online unless they resort to defeating the metadata laws by using a VPN to another country or by using companies that do not maintain an Australian presence, encrypt what you’re doing and keep no data here.
Essentially the government has sidelined the legal profession and the courts until such time as there is a criminal or civil case launched against you, but you should expect the US multinationals to send letters threatening legal action unless you pay them, not to take the matter to court.
How will this data potentially be used by security agencies?
Initially there will be an expansion of the security agencies to see what the metadata provides, but as the Europeans have found, the end result is likely to be very little found of a criminal or terrorist nature.
The idea is that this data can be scanned to see what "people of interest" are doing online and to try to identify people that are using the Internet for purposes that might place them on the "people of interest" list.
Problems with this approach occur when people access websites outside Australia and the contents of the website can provide very little in the way of useful metadata, such as someone accessing a terrorist message or page on a social media site.
Who will be affected by the laws, and how?
Every Australian is now affected by the metadata laws and this means that Australians should look to protect their privacy by defeating the metadata laws.
We should expect a number of guides to appear quite quickly and of course, companies that will help protect privacy for a "small fee".
In your opinion, how effective will the legislation be?
The legislation has not been effective in Europe, so there is little reason to anticipate it will be effective here, but only time will tell.
What might be the benefits?
The benefits of the legislation might be the identification of potential criminals or terrorists or evidence that criminals or terrorists have carried out an act against the national interest.
But if the legislation helps convict one terrorist when 10 or 100 are not caught because they know the simple steps to bypass the metadata laws, then we need to question whether the laws are effective and provide a justifiable benefit given the loss of national privacy.
In summary, the government has taken a step that will impact on every Australian and the decision to commence a surveillance regime of this magnitude is quite remarkable, especially when the apparent costs are likely to far outweigh the benefits.
It is my hope that the government does not let the metadata fall into the wrong hands and this means it must be kept out of civil law matters.
- The new data retention laws remove key checks and balances normally associated with gathering evidence.
- A person’s metadata can now be collected and used against them in civil court cases.
- Effectively, Australians now have no privacy online unless they resort to methods that can defeat the metadata laws