21 July 2012

Own Goal?

Australian Attorney-General Nicola Roxon seems to have mistaken an own goal for kite-flying, judging by comments in today's Sydney Morning Herald.

In an article for this month's Privacy Law Bulletin (or snippier pieces here and here) I questioned wide-ranging proposals for 'rationalising' national security law and requiring business to retain telecommunication traffic data for a two year period.

Those proposals are disappointing because the issues have been explored in depth on several occasions in different parliamentary inquiries without gaining much support.

The proposals are also disappointing because they are accompanied - and apparently justified - by a notably thin (indeed misleading) discussion paper from the Attorney-General's Department. The urgency of the consultation can be attributed to political opportunism or merely to ineptitude within the Department and the Minister's Office. If we are going to reshape the privacy landscape and strengthen the powers of a range of agencies it is important that law reform take place on a properly informed basis, rather than being rushed in a way that disregards consideration by the legislature and consultation with the community, including bodies such as the Law Institute of Victoria that have highlighted problems in the past.

Under the heading 'Roxon doubts over security plans to store web history' the article states that -
 "The case has yet to be made'' for a controversial plan to force internet providers to store the web history of all Australians for up to two years, says the Attorney General, Nicola Roxon, who has acknowledged the financial and privacy costs of such a scheme. 
She expressed her reservations in an interview with The Herald in what may be a sign the government does not have the appetite for forcing through Parliament the most controversial proposal among more than 40 national security proposals. 
The proposals, if passed, would be the most significant expansion of national security powers since the Howard-era reforms of the early 2000s.
It is true that the case made by the discussion paper is unpersuasive, not least because of its vagueness. 

The SMH states that -
Regarding data retention, Ms Roxon said she had some sympathy for the view of national security agencies, but said: "I am not yet convinced that the cost and the return - the cost both to industry and the [civil liberties] cost to individuals - that we've made the case for what it is that people use in a way that benefits our national security." 
"I think there is a genuine question to be tested, which is why it's such a big part of the proposal." 
 The article goes on to comment that -
This view will be greeted with some apprehension by one of the main advocates for such a regime, Neil Gaughan, who heads the Australian Federal Police High Tech Crime Centre. 
"If we don't have a data retention regime in place we will not be able to commence an investigation in the first place. And it's already getting increasingly difficult," he said. Opposition to such laws in Germany - the government has declared them invasions of privacy and forbidden them - has left the German federal police agency the Bundeskriminalamt or BKA a laughing stock, Assistant Commissioner Gaughan said.
Asst Commissioner Gaughan might want to do his homework. The German Constitutional Court - applying EU law and the German Constitution - rather than the German Government held over-reaching law to be invalid. Law enforcement in Germany continues: the nation isn't a wild west in which police are unable to act. Wiretaps are permissible within the German legal framework. It is thus disconcerting to read that
"No one can work with them internationally," he said. "If I go to Germany with an inquiry about who called who, when and why, they can't tell us. It's causing the BKA all sorts of problems."
 Evidence to a current inquiry in Germany noted here might suggest that bureaucratic ineptitude rather than unprecedented legal constraints is what causes people to laugh at Germany's spooks and feds.

The SMH article also notes that
 The committee investigating the proposals has already reacted to complaints that four weeks allowed for submissions from the public was not long enough. It announced yesterday that it was extending the deadline by a fortnight.