The National Security Amendment Bill (No. 1), introduced into parliament in July, has so far caused little public outcry. It appears set to pass with virtually no serious opposition from either the political establishment or the liberal media.
Yet the proposed changes constitute the most significant modification to Australia’s “anti-terrorism” laws in nearly a decade. They provide sweeping new powers to ASIO to spy on the public, act with impunity, collaborate with corporate interests and jail whistleblowers and those who support them.
The government’s line – that these laws are simply about bringing ASIO up to date with the technological age and dealing with the threat of returning jihadists – has, not surprisingly, been enthusiastically promoted by the Murdoch press.
The acquiescence on the part of the liberal media, combined with a public worn down by 13 years of unabated terrorism hysteria, has created a climate in which the government feels it can continue to trash democratic rights and accountability.
The continuous, incremental attacks on civil liberties and the expansion of various states’ spying and repressive apparatus have been an almost universal reality since 11 September 2001. Contrary to its low-key image, Australia has been at the forefront of this assault, enacting more so-called anti-terror laws than the US, UK or Canada. It has reached the point where, in the words of Canadian academic Kent Roach, “Australia’s hyper-legislation [has] strained the ability of the parliamentary opposition and civil society to keep up, let alone provide effective opposition to, the relentless legislative output.”
Melbourne University legal academic George Williams outlines the significance and substance of these changes, explaining that, at the federal level, alone: “Over 50 new statutes running to many hundreds of pages have been passed by the federal Parliament [as of 2011].
“This legislation has been of unprecedented reach, including laws providing for: restrictions on freedom of speech through new sedition offences and broader censorship rules; detention and questioning for up to a week by the Australian Security Intelligence Organisation of Australian citizens not suspected of any crime; the banning of organisations by executive decision; control orders that can enable house arrest for up to a year; detention without charge or trial for up to 14 days; and warrantless searches of private property by police officers.
“As these examples demonstrate, powers and sanctions once thought to lie outside the rules of a liberal democracy except during wartime have now become part of the Australian legal system.”
The government has been aided by the corporate media’s largely uncritical approach to the “war on terror”, willingness to whip up panic about terrorism at any opportunity and ongoing racist portrayal of Arabs and Muslims as a threat to Western democracy.
Added to this, both major parties agree that national security is a key priority and accordingly have passed progressively more draconian laws, made examples of individuals and further extended the power and reach of ASIO in order to demonstrate their superior credentials on the question. It is also in the long term interests of the Australian state apparatus to have more powers to deploy against its citizens, even if the exercise of such powers is not on the immediate horizon. Most of Australia’s anti-terror laws were passed by the Howard government. Between 11 September 2001 and the election of Labor in 2007, 48 separate pieces of anti-terror legislation were enacted, an astounding average of 7.7 per year. This was also the period in which many of the above-mentioned legal norms and entitlements were wound back and the public bombarded with unremitting and viciously racist moral panic about the threat of Muslim terrorists. Subsequent Labor governments managed only about one piece of anti-terror legislation per year, but their Telecommunications Interception and Intelligence Services Legislation Amendment Act and Intelligence Services Legislation Amendment Bill 2011 were no less draconian than those passed under Howard. In what was widely considered to be a thinly veiled act of retaliation against Wikileaks and the embarrassment its revelations caused, Labor’s bills dramatically expanded the sorts of activities considered to constitute a criminal threat to the Commonwealth, increased the penalties for such actions and granted extensive new surveillance powers to ASIO.
The amendment currently before parliament stays true to this theme. It incorporates a range of recommendations made by the Joint Parliamentary Committee on Intelligence and Security in a report tabled in June 2013, and is the first of at least two weighty national security bills the Abbott government plans to put forward in this parliamentary term.
Let’s have a look in your computer
Sweeping changes are being made in relation to computer access warrants. Currently, computer access warrants can be granted only for specific computers when there is evidence to suggest that computer contains data pertaining to a national security threat. Both the name of the targeted individual who owns or uses the computer and the ASIO officer entitled to enact the warrant must be specified. The new bill proposes to expand ASIO’s power in three ways.
First, rather than specifying a particular computer, computer access warrants can empower ASIO to access any computer or related device that an identified person might have used or had access to, without limitation. This could include all computers on a particular network, computers and devices belonging to third parties and the computers of anyone the targeted individual may have had communication with. ASIO officers are entitled to use force to enter any premises to access these devices, and to access them secretly.
Secondly, it entitles ASIO to add, delete or alter data on any computer or device that is accessed through this warrant, not just a specified computer, as is currently the case. That is, ASIO can tamper with, add malware or alter data and communications on a range of computers and devices belonging to third parties whose devices ASIO would otherwise have no grounds to access, simply by deeming the computer or device relevant to an identified person.
There is no specification about what interference is and is not permissible, and ASIO is able to exercise these powers with virtually no restriction. In effect, ASIO will be able to collect information about and carry out surveillance of people for whom they have no evidence that they represent any threat to national security, and against whom they have not been issued a warrant, and will be entitled to tamper with communications and data belonging to them.
The significantly expanded range of individuals this will give ASIO the power to spy on without a warrant, combined with the potential for planting evidence and entrapping individuals, has obvious and extremely serious civil rights implications.
Thirdly, under the government’s proposed changes, warrants will no longer have to confer power on specific ASIO agents, but can be exercised instead by a “class of person”. Warrants may also be changed and amended by the ASIO director, rather than by the minister, as is currently required. These measures will dramatically expand the scope, ease and flexibility of ASIO’s surveillance, data collection and computer interference and disruption activities.
Cooperation with private sector
The current bill also includes within it a range of measures to formalise the relationship between ASIO and the private sector. While extensive collaboration in this area is already the norm, there is no formal legal basis for much of this activity.
The new bill seeks to provide legitimacy to this collaboration. It allows extensive information and intelligence exchange between ASIO and the private sector, and through the introduction of a new entity, an “ASIO affiliate”, confers extensive powers hitherto restricted to ASIO employees on a broadly defined category of persons “performing functions or services for [ASIO] in accordance with a contract, agreement or other arrangement”.
Should these changes be adopted, private companies that have any sort of “arrangement” with ASIO will be empowered to carry out surveillance, including the use of listening devices, visual recording and tracking of individuals, including their employees.
The proposed amendments furthermore allow greater intelligence sharing, meaning that information collected about workers, job applicants and union activity, as well as political campaigns targeted at companies and the political organisations involved in them, can potentially be shared freely between ASIO and private interests.
The changes will also legitimise the considerable spying on foreign corporations that is carried out in the interests of Australian business at taxpayers’ expense. This is especially the case since amendments made by Labor in 2011 expanded the basis on which foreign intelligence could be collected from “the defence of the Commonwealth or … the conduct of the Commonwealth’s international affairs” to “Australia’s national security, Australia’s foreign relations or Australia’s national economic wellbeing”.
The scope for corporate interests to use intelligence both to outdo competitors and to spy on workers and protest movements, and to target critics of Australian foreign policy such as Wikileaks, under these combined changes is extremely broad.
Criminalisation of whistleblowers
Perhaps the most pointed elements in the amendments are the provisions relating to “protection of information”. Coming just over a year after former NSA contractor Edward Snowden exposed the wide-ranging spying both domestically and abroad of the US and its “five eyes” allies, these proposed changes are intended to intimidate and persecute existing and potential whistleblowers and deter others from publicising their revelations.
Importantly, the amendments create two new offences – disclosing information about “special intelligence operations”, and aggravated disclosure that endangers the health or safety of any person or prejudices the operation. These new offences carry penalties of up to five or 10 years’ imprisonment respectively, and apply not only to employees or affiliates of ASIO, but any person who discloses information. This means that journalists, bloggers, activists and others who assist, publish or otherwise help whistleblowers to pass on information may be targeted and jailed.
The category of “special intelligence operation” (SIO) is also new, and, as Crikey’s Bernard Keane has noted, rather arbitrary and subject to no government oversight. In addition to their special protections from whistleblowers, ASIO agents will enjoy immunity from liability for a range of offences committed in the course of the operation. Potentially, by ASIO designating operations as SIOs, it can access greatly increased secrecy and immunity from prosecution without any meaningful public oversight.
The amendments also increase the penalties and expand the scope of other unauthorised activity in regard to ASIO records by employees and affiliates, all punishable by up to three years’ jail.
These measures are clearly aimed at creating a culture of fear and intimidation inside an organisation in which secrecy is so widespread and unchallenged and there is such limited government oversight, that the public is forced to rely on whistleblowers for any measure of accountability or transparency.
Edward Snowden’s lawyer, Jesselyn Radack, has described the changes as “antithetical to a free and open society”. NSA whistleblower Thomas Drake has warned that they “will create a climate in which people will self-censor. They will opt not to reveal anything. They will opt not to associate with certain individuals. They will opt not to share certain information just on the risk that it might be designated secret.”
This reflects the government’s strategy more broadly in the wake of the embarrassing Snowden revelations: create the conditions for maximum intimidation of potential whistleblowers, and give a legal basis and consequent legitimacy to ASIO activities that go beyond what the public currently considers reasonable or permissible. Key to this is also creating a political climate in which the supposed threat of terrorism seems real, and a perception that these are concerning enough people in the community to warrant severe measures.
Hence sensationalist Herald Sun headlines about returning jihadists and radical Islamists, and excessive coverage of government efforts to identify and issue warrants for the handful of Australian citizens involved in activities in Iraq and Syria (while happily cheering on the hundreds of Australians committing genocide as part of the Israeli military operation in Gaza).
As the “No. 1” in the legislation’s title suggests, the current amendment bill is by no means the total of the Abbott government’s agenda with regards to national security.
Using as a pretext the case of two Australian citizens who have advertised their activities in support of the reactionary Islamic State movement in Iraq via social media, the government is set to rush through further laws targeting citizens returning from conflict areas. Pending cabinet approval, it seems likely that these laws will enable the government to declare particular areas of the world “localities of concern” and treat anyone visiting or returning from them as terrorists until proven otherwise.
Such changes are necessary, according to attorney general George Brandis, in order to deal with “the difficulty of proof” that police and governments face when they want to charge people with crimes, but have no evidence. Brandis advocates “enabling the foreign minister to declare travel to a particular locality a locality of concern, so as to invoke the terrorism provisions of the criminal code, so that the difficulty of proof that the AFP have experienced in some cases can be overcome”.
In other words, if the government wants to put you in jail, but has no evidence that you did anything wrong, you have to prove that you’re innocent – or go to jail.
The government also looks set to provide spy and police agencies with a multi-million dollar funding boost, enhance the government’s power to suspend passports and broaden the definition of what action constitutes “promotion of terrorism”, all of which have serious human rights and civil liberties implications.
Who have you spoken to?
The most serious measure currently under “active consideration” by the government but not included in the current round of amendments is known as data retention. This involves service providers being required to collect and store some or all data relating to phone and internet use (known as “metadata”) of every customer for up to two years for use by the government and ASIO in criminal and terrorism investigations.
Although often presented as innocuous, metadata is anything but. Information collected about mobile phone use, including location and duration of use, recipients of calls and messages and frequency of calls, and about internet activity, including the location of user, websites visited and all internet-based communications, have extensive uses and provide detailed intelligence to spy agencies and government.
Contrary to some claims, metadata also contain information about the content of phone and internet activity and communication – “lots of it”, according to internet provider iiNet’s statement against data retention. Its website demonstrates how significant amounts of content are embedded in metadata, which can be easily accessed by intelligence agencies, and that claims otherwise are disingenuous.
That metadata can provide much more detailed and revealing information about us to the government than the specific content of communications alone has been confirmed by a study undertaken by Stanford University, in which researchers found that phone metadata are “unambiguously sensitive, even over a small sample and short time window. We were able to infer medical conditions, firearm ownership and more, using solely phone metadata.”
Georgetown University Law Center professor David Cole has similarly outlined how “metadata alone can provide an extremely detailed picture of a person’s most intimate associations and interests, and it’s actually much easier as a technological matter to search huge amounts of metadata than to listen to millions of phone calls. As NSA General Counsel Stewart Baker has said, ‘metadata absolutely tells you everything about somebody’s life. If you have enough metadata, you don’t really need content.’”
Former NSA head Michael Hayden has taken the point further, stating, “we kill people based on metadata”. This is no throwaway remark. Glenn Greenwald has revealed that patterns of mobile phone activity have been used to target and kill individuals in US drone attacks in Afghanistan, Pakistan and Yemen.
Brandis claims that data retention is “the way the West is moving”, and therefore we should accept its introduction as inevitable. But internationally, data retention laws and measures are just as likely to be challenged and overturned as they are to be introduced.
In April, the Court of Justice of the European Union ruled that data retention was not in accordance with EU law, as it involved intolerable “interference with the rights of practically the entire European population”. It agreed with privacy campaigners that the practice was in violation of the EU’s Charter of Fundamental Rights (for which there is no equivalent in Australia). Its ruling led to several European countries reconsidering or repealing their laws, including Slovenia, Germany and Ireland.
The UN High Commission for Human Rights has likewise released a damning report into mass surveillance schemes such as the one advocated by Brandis, which is described as a “dangerous habit” of governments that impinge on fundamental human rights such as freedom of expression and association.
Even the US Congress, under pressure from the outrage caused by Snowden’s revelations, earlier this year moved to bar the NSA from collecting metadata in bulk. So the trend internationally from the point of view of civil rights and accountability is clearly away from unfettered metadata collection and use, not towards it.
In Australia, a recent Essential Media poll found that 80 percent of people disapproved of access to their metadata without a warrant. Submissions to the Senate inquiry indicate that human rights and privacy bodies, private companies and lawyers feel the same way.
The government claims that if people are doing nothing wrong, then they shouldn’t be concerned about information being collected regarding every detail of their life. This logic is never applied to government itself – just look at the hysterical reaction to Wikileaks’ or Snowden’s revelations about the nefarious and criminal activities of Western governments, most of which are carried out in complete secrecy. The trend in relation to government is less transparency and greater secrecy, while the public is expected to accept the wholesale trashing of its right to privacy.
It is entirely legitimate that ordinary people do not want information about their political affiliations, union activity, medical conditions, sexual practices or anything else collected and monitored by the government (and potentially shared with private companies). Whether it has immediate consequences or not, such a situation undeniably serves to intimidate people, encourage conformity and compel obedience. It strengthens the government against those whose consent or acquiescence it relies on to govern, and equips it with a powerful weapon that can be used at any time against minorities, political campaigns, the labour movement and others.
With the escalating crisis in the Middle East, and the shift in political focus and rhetoric on the part of Western governments toward portraying all opposition movements as Islamic fundamentalist and terrorist, the government senses an opportunity to launch a renewed assault on our rights.
Using the spectre of returning jihadists, it is undermining freedom of association, freedom of speech, the right to privacy and the entitlement of citizens to some oversight and transparency regarding spying operations carried out in their name. It also knows that it will not face serious opposition, both because the liberal media and commentators have been intimidated and because the organised forces that could potentially mobilise the considerable opposition to these changes are weak.
Taking on their ideological assault, defending whistleblowers who expose state crimes and connecting the increased surveillance with the corporate interests governments are intent on pursuing in the Middle East and beyond is the first step towards rebuilding resistance to the government’s surveillance agenda.