1. The Telecommunciations (Interception and Access) Amendment (Data Retention) Act 2015 Cth established a new approach to accessing ‘metadata’. Was this amendment a necessary adjustment to Australia’s counter-terrorism law framework? Give reasons for yo Essay Example
22.0 Criticism and Justification
52.1 Possible Risks
62.2 Implications of the Amendment
73.0 Looking Forward
The Telecommunications Act 2015 (cth)
Nearly two years ago, an amendment of the antiterrorism law was done to help intelligence and law enforcement agencies to fight terrorism to the maximum. By far, recent terror activities, combats, and neutralization have shown that the amendment of Act 2015 (Cth) was not necessary1. During its inception, the amendment was received amid complaints and speculations from various stakeholders regarding the ethical concerns involved. With this amendment, digital privacy would be at stake thus personal security would be compromised to a greater extent. As the new Act required, the Australian telcos and ISPs would access personal data, ranging from download volumes, mobile phone usage, emails, messages, calls and landline voice. According to the provision, a secret register would be kept by the service provider so as to serve as an identification bureau for the person being targeted, particularly regarding terrorism and terrorist activities. Over time, the amendment of this law framework to counter terrorism in Australia has by far been proven ineffective. However, there are still challenges due in its implementation2. This essay discusses inefficiencies in the amended Act and the challenges that state security agencies and telecommunication operators have faced in ensuring that the set objective is achieved.
2.0 Criticism and Justification
Several parties have criticized the Telecommunications (Interception and Access) Amendment (Data Retention) Act 20153. Internet Australia, being the central stakeholder resisted the enactment of this Act to a greater extent. The basis of which the Act was founded was questioned by the Academics and Privacy advocates4. Additionally, serious concerns about its implications on the laws of privacy were questioned by the Australian Information Commissioner. According to the reports generated from the AGD, incomplete metadata was an urgent requirement in combating terrorism in Australia5. Amid all these arguments, the question remains as to whether data retention is necessary, proportionate and reasonable.
Majority of Australians have been affected by this scheme. Companies such as Telcos increased the cost of internet access that ran to hundreds of millions of dollars. The Australian civilians have been subjected to a surveillance tax. It was expected that the scheme would be financed by the federal government but to the state’s realization, civilians are paying heavily to the government. According to Abbott, the Prime Minister who was in office during its inception, the total cost for funding the scheme was to be $131 million6 . However, the Joint Committee on Intelligence and Security supplied evidence showing a possible $60 surveillance tax in every household7. Relatively, a figure of $60 per household translates to a cost of $5 for every customer to store data8. While competing against larger companies, smaller ISPs will have been forced to meet the costs of the data retention regime.
To some extent, the enactment of this Act serves as means for maintaining the status quo. Evidently, phone records have been kept by highest telcos companies like Telstra and iiNet9. In this case, therefore, data retention will be a waste of resources that could have been converged to establish more comprehensive ant-terror mechanisms. The police departments have failed to substantiate claims that metadata would help to investigate crime and combat terrorism. Comparatively, the use of «data retention» as an antiterrorism approach in Netherlands has been active for the last four years. There is no prove that the approach has helped to combat the vice. There is also debate among citizens on who will have the authority to access the data. Up to the moment, the government has not laid the exact agencies responsible for accessing telecommunication data. According to most citizens, the public and service providers should be given authority to decide which agencies can obtain their data instead of the government itself.
A study conducted in Australia marked that the rate of crime clearance had increased by 0.04% in 201410. In connection with this data, the Attorney General’s department officials and the Australian police forces have also expressed their lack of evidence about the kind of security they would achieve with the use of data retention. The only case that proved the effectiveness of the use metadata in fighting terrorism was the 2005 Operation Pendennis that several proponents of the metadata approach have always quoted11. The effectiveness of this approach in this particular case is questioned when it failed to identify the masterminds of the terror activity and the groups that were involved.Comparatively, the US has passed Freedom Acts that restricts security agencies to get access to all call records12. Furthermore, countries like Israel with more terrorist threats than Australia have not yet passed such law as they have not perceived it as a comprehensive and effective strategy to an adequate response to terror threats. So far, the data surveillance process has not yet exposed any serious criminal plots in Australia thus this makes it lack a legitimate purpose.
2.1 Possible Risks
Assuming, despite the evidence and for the argument’s sake, that crime detection rates could be improved with data retention, provokes a series of arguments about the rights of citizens. It is acceptable that there are rights that mark a trade-off between a particular state’s power to protect its citizens and the rights of privacy of an individual. The Act would expose individual information since their consent is not sought for when their information is needed. It is also a common understanding that detecting, preventing and punishing crime is made difficult more often due to the civil liberties of citizens13. They are, nonetheless, valued highly and as such kept anyway. Challenges arose when there is a mismatch in balance for the state that is created by the «data retention» regime. The jurisdiction is repressive as it limits the time that citizens use on the internet. This point of view leads to a generalization that any limitation on data retention is unnecessary and is only geared towards exploitation of the public.
Data has shown that the number of terrorist incidences in Australia is on the rise even after the amendment of the Act. On 10 September 2016, the Minto Stabbing attack in New South Wales was a terrorist attack that «data retention» never detected14. Equally, the Queanbeyan Stabbing on 7 April 2017 is no exception15. Significantly though, the method has not been used as a comprehensive means to counter terrorism following the reason that as at 2016, prosecutions for terrorist offense have been the only means for identifying terror groups and activities. With all these scenarios and evidence from terror threats that have experience in the last two years, there is no way that the existing data protection law is adequate as a terrorism countermeasure. The inadequacy of this mechanism is contributed to by the fact that it depends on a lot other program activities like coding and voluntary compliance.
2.2 Implications of the Amendment
The amendment is likely to be a threat to many institutions within the Australian community. According to the Metadata Retention Act, most institutions including police departments and local councils were barred from accessing citizen data without a warranty16. The restriction renders such institutions and departments in great danger as they cannot access data of their ordinary clients. The order puts the barred institutions and government departments at a greater risk of offering their daily services. Additionally, the order does not cover corporate and university networks, this has a potential of creating more threats to the university sector in particular considering the safety of students.
Notably, key government departments have not defined clearly the meaning of metadata causing more contradictions and confusions among citizens. For instance, there is a question whether the web-browsing history of an individual is inclusive of the intended data. Recently, Attorney George Brandis faced challenges in his bid to explain the meaning of metadata in the security context regarding websites and personal portfolios17. Most of these questions remain unanswered by the relevant authorities bringing misunderstanding of the new law.
In adopting the new directive, most service providers will require more time to fully adhere to the requirements. The time of implementation will vary among companies depending on their system designs. As such, most telcos are likely to take long periods to start storing destinations of corresponding IP addresses of their customers and also removing some data from their systems will require technical advice from experts. Considering all these requirements and processes there is still the challenge of ensuring full implementation of the amendment in the counter-terrorism law. The Communications Alliance CEO, John Stanton, is debating on behalf of the industry for an extension of the deadline and the cost. The stakeholders in the industry have argued that the estimated budget of $131 million will not be enough due to other attached expenses like the surveillance tax18. This provokes the question of the community cost in tax to finance the transition.
3.0 Looking Forward
Through declaration and on a temporary basis, the Attorney General is permitted by Subsection 187 AA (2) of the Data Retention Act 1998, to amend the dataset. Thus providing a fine opportunity to inculcate different views from various civil society groups and lawyers for the betterment of the law. Additionally, it gives room to cover future situations based technologies and changes in telcos practices. Moreover, Australia Communication and Media Authority should hold extensive consultation process as stipulated in section 187G. All this should work together to ensure information security obligations to avert terrorism.
Today, most terrorist attacks are linked to strong religious beliefs. There is much radicalization among the youth increasing their numbers into terrorist organizations. Some youths pretend to attend mosque sessions when in reality, they would be plotting strategies on more terrorist attacks19. Despite holding most data, terrorist groups may decide to schedule private meetings without the knowledge of intelligence department. For instance, Farhad Mohammed had visited a local mosque of extremist Islamic groups before the attack that led to the killing of Curtis Cheng20. With the evidence from this scenario, the use of data retention as mitigation approach to counter-terrorism is rendered ineffective.
The amendments in the telecommunications act of 2015 do not safeguard the confidentiality of critical information. Sensitive information concerning legal privileges and health records of individuals is at risk. The telecommunication data is capable of revealing information that can be against the law such like client and lawyer which can be disclosed during defense process. This is against the requirements in the amendments to Privacy Act 1998 (Cth) of 2014 that strengthened privacy and protection. As such, the bill need to house specific safeguards to prevent discloser of confidential information.
The data retention periods need to be reduced. According to the Data Retention Amendment Act of 2015, telcos providers have a maximum period of two years to retain computer and phone metadata for their customers. The EU data retention directive imposed on a retention period of between six to twenty-four months. Most countries have adopted six to eighteen months period to prevent data alteration. As such the Australian government should consider reducing the data retention period down from two years to reduce the risk of data breaches and the extent to which data is compromised. Additionally, the geographical location of the person whose data may contribute to detection and prevention of terrorist attacks may be extended in case of any suspicion.
By far the government has not demonstrated any form of urgency to implement fully the provisions of the amendments. From the federal government’s underestimated budget, there will be financial constraints in administering the implementation process of the policy21. Additionally, there is no good criteria in the disbursement of the funds to each telecommunication company to facilitate data retention22. As such, more cash needs to be pumped to ensure the successful transition and clear any possible barrier that may occur in the process. The delays give terrorist opportunities to plot for more attacks in the country.
There is need for an oversight judicial to inspect the process in avoiding information errors. To establish an inspection regime, the Ombudsman is bestowed with authority from Section 186B of the Data Retention Act 1998 to inspect such data retention records23. In return, the Ombudsman is required to report accurate results relating to compliance as provided in section 186J on public reporting24. In so doing, all security agencies will ensure maximum compliance in providing necessary information to the intelligence department and henceforth easing prevention of terrorist operations.
In response to growing security threats and as required by law, the Parliamentary Joint Committee on Intelligence and Security drafts necessary reforms to counter terrorism. As such, they have been mandated to come up with preferred legislative frameworks that address Australian citizens’ need and providing technical detail to service providers. Being the representative of citizens, the members of parliament need to formulate laws that are of the best interest of most citizens25. Moreover, the service providers are also essential in facilitating the communication processes, their views and suggestions need to be taken seriously.
The data retention scheme is invasive, based on the cost, threats, right to privacy, freedom of expression and need for a free press in the society. There are questions on the need for the Australian government to uphold human rights and need to protect unlawful access and disclose of confidential information. In a pursuit to maintain the safety of all citizen, essential human factors like need to privacy and confidentiality are paramount. By actual degradation in investigative capabilities the security of people is threatened and is yet to worsen if appropriate mitigation measures are not undertaken26.
With the increase in terrorist attacks worldwide, not assuming the most recent attack in the city of Manchester, there is need for necessary amendments particularly on intelligence and security Acts to avert terrorism. Notably, the recent amendments to the Data Retention Act 1998 have brought uncertainties for most service providers27. The attorney general’s sentiments on the need for telcos to retain information routinely does not describe the type of data. In future, broader and more sweeping metadata collection laws need to be enacted. A comprehensive law to counter terrorism can be enacted if there is coordination of all government agencies and various civil society groups.
Beckman, James. Comparative legal approaches to homeland security and anti-terrorism. Routledge, 2016. 212. Print.
Clarke, Roger. «Data retention as mass surveillance: the need for an evaluative framework.» International Data Privacy Law 5.2 (2015): 121-132. Print
Davis, Fergal, Nicola McGarrity, and George Williams. Surveillance, counter-terrorism, and comparative constitutionalism. Routledge, 2014. 11. Print.
Greenleaf, Graham. «Scheherazade and the 101 data privacy laws: Origins, significance and global trajectories.» JL Inf. & Sci. 23 (2014): 4. Print.
Jackson, Richard. «The epistemological crisis of counterterrorism.» Critical Studies on Terrorism 8.1 (2015): 33-54. Print.
Leonard, Peter. «Mandatory internet data retention in Australia-looking the horse in the mouth after it has bolted-May 2015.» Intellectual Property Forum: Journal of the Intellectual and Industrial Property Society of Australia and New Zealand. No. 101. Intellectual and Industrial Property Society of Australia and New Zealand Inc. 2015.
Mueller, John, and Mark G. Stewart. «Evaluating counterterrorism spending.» The Journal of Economic Perspectives 28.3 (2014): 237-247. Print.
Nacos, Brigitte. Mass-mediated Terrorism: Mainstream and Digital Media in Terrorism and Counterterrorism. Rowman & Littlefield, 2016. 211. Print.
Nicholson, Lyn. (2015) big data, metadata and personal data-How does the Privacy Act regulate metadata? Bulletin. Retrieved from www.holdingredlich.com
Santas, Victoria. Traces of Terror: Counter-terrorism law, policing, and race. Oxford University Press, 2014. 221. Print.
Tsesis, Alexander. «The right to erasure: Privacy, data brokers, and the indefinite retention of data.» Wake Forest L. Rev. 49 (2014): 433. Print.
Zwart, Melissa de, Sal Humphreys, and Beatrix Van Dissel. «Surveillance, big data, and democracy: Lessons for Australia from the US and UK.» UNSWLJ 37 (2014): 713. Print.
1Act 2015 (Cth) refers to the Counter-terrorism Legislation Amendment Bill (No. 1) 2015, Supplement of the Criminal Code Act 1995.
2Introduced and first reading head on 12 Nov. 2015, second reading 12 Nov. 2015 and Lapsed at Prorogation on 17 April 2016.
3Internet Australia, Internet Society of Australia- ACN 076 406 081, ISOC-AU
4Academics and Privacy advocates http;//www.theaustralian.com.au/business/media/calls-for-enquiry-into-afp-metadata-breach/news-story
5AGD-Attorney General’s Department, offshore shore storage of Aussie metadata
6Beckman, James. Comparative legal approaches to homeland security and anti-terrorism. Routledge, 2016. 212
7Clarke, Roger. «Data retention as mass surveillance: the need for an evaluative framework.» International Data Privacy Law 5.2 (2015): 121-132.
9Telstra and iiNet are among Australia’s largest telecommunication companies
10Davis, Fergal, Nicola McGarrity, and George Williams. Surveillance, counter-terrorism, and comparative constitutionalism. Routledge, 2014. 11.
11Greenleaf, Graham. «Scheherazade and the 101 data privacy laws: Origins, significance and global trajectories.» JL Inf. & Sci. 23 (2014): 4
12The freedom Acts protect citizens data, hence no prove that the data restriction policy will work effectively. The Freedom of Information Act, 5 U.S.C. & 553, an amendment of Pub. Law No. 110-175, 121.
13Nacos, Brigitte. Mass-mediated Terrorism: Mainstream and Digital Media in Terrorism and Counterterrorism. Rowman & Littlefield, 2016. 211.
14Beckman, James. Comparative legal approaches to homeland security and anti-terrorism. Routledge, 2016. 212.
16Although the use of warranty to access this data was disputed by the Department of Chief Justice in 2015, no such amendment are available to accommodate these changes. Available at http:www.aph.gov.au.
17An electronic version of this Information Available at http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/Publications_Archive/archive/TerrorismLaws
18Leonard, Peter. «Mandatory internet data retention in Australia-looking the horse in the mouth after it has bolted-May 2015.» Intellectual Property Forum: Journal of the Intellectual and Industrial Property Society of Australia and New Zealand. No. 101. Intellectual and Industrial Property Society of Australia and New Zealand Inc. 2015.
19Tsesis, Alexander. «The right to erasure: Privacy, data brokers, and the indefinite retention of data.» Wake Forest L. Rev. 49 (2014): 433.
20 Curtis Cheng http://article.wn.com/view/2017/05/01/Farhad_Mohammed_gave_Islamic_State_salute_before_killing_Curl
21Jackson, Richard. «The epistemological crisis of counterterrorism.» Critical Studies on Terrorism 8.1 (2015): 33-54.
22Nicholson, Lyn. (2015) big data, metadata and personal data-How does the Privacy Act regulate metadata? Bulletin. Retrieved from www.holdingredlich.com
23Zwart, Melissa de, Sal Humphreys, and Beatrix Van Dissel. «Surveillance, big data, and democracy: Lessons for Australia from the US and UK.» UNSWLJ 37 (2014): 713
24Ombudsman Act 1989
25Mueller, John, and Mark G. Stewart. «Evaluating counterterrorism spending.» The Journal of Economic Perspectives 28.3 (2014): 237-247
26Freedom of Information Act 1989
Crimes (Surveillance Devices) Act 2010
27Santas, Victoria. Traces of Terror: Counter-terrorism law, policing, and race. Oxford University Press, 2014. 221.
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