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Urgency: Have Australian citizens been subject to indiscriminate data collection?

Speeches in Parliament
Scott Ludlam 4 Dec 2013

Senator LUDLAM (Western Australia) (17:35): I thank the Senate for the opportunity to bring these matters forward.

We in the Australian Greens believe that this is a debate of urgency and that it is a matter of great public importance.

This morning, we felt that it was urgent for the Attorney-General to make a statement of explanation about activities undertaken by our intelligence agencies in raiding a lawyer's office and interrogating witnesses hours before legal hearings got underway overseas.

Three weeks ago, it was urgent to ask why the Indonesian President and his wife were under surveillance by some of these same agencies. Today, we are focusing on the agency of what we find most alarming and something that we have been raising consistently in this chamber and in the community since the first daggy power point slides from the US National Security Agency became available, introducing the concept of PRISM to wide public understanding.

The subject of this debate today is the need to establish the degree to which law-abiding Australian citizens and people all around the world are the subject of wide-scale, indiscriminate, passive, real-time or retrospective surveillance. The revelations by the brave whistleblower Edward Snowdon would appear to show that the government of the United States and its allies, including Australia, have been systematically spying on the whole world.

And I strongly contest the statement that our Attorney-General, the highest law officer in the land, made the other day in this chamber in which he described Edward Snowdon as an American traitor.

Senator Brandis, if you want to know why your standing in the general community is so low and why you are held in such casual disregard by everybody who has come across your work, look no further than a statement like that.

Such surveillance, not only domestic but also extra-territorial, by various states' parties, violates the human right to privacy. Such surveillance reverses a fundamental tenet of democracy-which is that we are innocent until proven guilty-because it is a form of retroactive policing: 'We will collect all of your communications, in case you turn out to be a criminal one day.' Surveillance carried out through intelligence organisations-such as the NSA in the US, GCHQ in the UK and ASD, formerly DSD, in Australia-is all pervasive.

It quite clearly is an attempt by these agencies to capture, in real time, all digital communications by all people, whether you are a suspect in a criminal investigation or not. There are voice calls, emails, secure networks and servers. Some of the most common and ubiquitous software services and hardware services in the world appear to have been backdoored. This covers all countries, including close allies of the United States: France, Mexico and the Chancellor of Germany among many others. This data is then stored for future use, just in case anybody, including people in this chamber, ends up becoming a suspect in some sort of national security or criminal investigation.

On 20 November, the UN General Assembly passed the resolution on the right to privacy in the digital age. This resolution notes that the large-scale use of new information and communications technology has also enhanced the capacity of governments, companies and individuals to undertake surveillance, interception and data collection. It has made it possible but it is time to recognise that we need to draw limits somewhere. Just because you can do these things does not mean that you should. We use the phrase deliberately, that these agencies are out of control. Having loosened themselves from the rule of law, operating effectively at the margins of national state and international law, they need to be reined in.

The European parliament is extremely concerned about this. It immediately established an inquiry on electronic mass surveillance, once the revelations had been made public by The Guardian and The Washington Post. The French, Canadian and German parliaments, and Westminster itself-all considered like-minded democracies-initiated inquiries immediately. This was followed by Brazil, Ecuador and many others. In the United States, the head of the NSA was called before congressional committees and told to explain himself. As it happened, he lied to one of those committees, further undermining the credibility of the agency.
On 7 October, 10 entities that run the architecture of the internet, including ICANN, the Internet Corporation for Assigned Names and Numbers, signed the Montevideo statement, which said:

They expressed strong concern over the undermining of the trust and confidence of Internet users globally due to recent revelations of pervasive monitoring and surveillance.

ICANN is not some civil-liberties non-government organisation; it is a fairly dry organisation that was created by the US government. It operates and carries out its responsibilities under an MOU with the US Department of Commerce, and all these nations and entities are breaking away.

What do we have in Australia? We have the ALP and the coalition hiding-cringing, in fact-behind the statement 'We do not comment on intelligence matters' or they claim that everything happening here and in the US is entirely within the law. Why then refuse even the mildest terms of reference for a thorough inquiry into these matters? Until fairly recently the government's tactics were nothing more than denial, obfuscation, 'pretend it's not happening', the political equivalent of curling up into a tiny little ball under your desk and just pretending and hoping that this will all go away. But in this last fortnight we have noted a new and dangerous change in tactics and that is to attack the messenger. George Brandis called Edward Snowden an American traitor. Tony Abbott and Malcolm Turnbull attacked the ABC, Australia's national broadcaster.

They were quite clearly provoked by some of the more unhinged elements of their backbench, and some of the parties such as those in Victoria that simply want to privatise the entity altogether. The voices that shrieked the loudest in February and March of this year when media-reform proposals, actually rather feeble and mild, in the opinion of the Australian Greens, were brought before this parliament, and when those media reforms were made public about the importance of press freedom underlying a democracy-arguments which were completely baseless in terms of the legislation that was brought before this parliament in those few chaotic weeks-are now the ones lining up to kick the ABC and the media organisations that have put this material in the public domain the hardest.

I was a little amused a short while ago to discover on Twitter that the National Security Agency Central Security Service releases Christmas talking points to its employees. The document says: 'NSA CSS employees are authorised to share the following points with family and close friends.' It is dated 22 November 2013. It is just amusing. I do not know whether Senator Brandis got a copy of the NSA's Christmas talking points for his speech this morning or whether he saw them on Twitter as well, but maybe he should have read all the way to the bottom. The second and third dot points, at point 5, say: 'The President and senior administration officials are reviewing NSA's programs and we stand ready to execute their policy guidance with our full support.'

These programs are being reviewed, I should say, because of the revelations that were put into the public domain by The Guardian and its media allies, including The Washington Post The New York Times and Australia's ABC. The NSA in its Christmas talking points goes on to say: 'We encourage the American public to work with us to define the way ahead in balancing transparency and national security. We embrace public dialogue.' If public dialogue is good enough for the US NSA, why is it not good enough for the Liberal Party and the Labor Party, who refuse to support mild terms of reference for an inquiry into the activities of these agencies and their affiliates here in Australia? Instead, they attack the messenger. Mr Abbott says the ABC is guilty of very poor judgement. Malcolm Turnbull dog whistles. Some of the stranger inhabitants of the Liberal Party backbench, in saying that the Liberal Party has made an error of judgement-

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