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But at what cost?: Christine Milne on data retention

The Australian Greens Leader, Senator Christine Milne, addresses the Senate with her second reading speech regarding mandatory data retention.

Senator MILNE: I feel as if the parliament is playing catch-up-and not doing it terribly well-with what is in fact a revolution. The revolution, or the major transformation, is in big data. We have now reached the point where the revolution is not in the machines that calculate the data-something which has been our lived experience and which Senator Kate Lundy just spoke about in her valedictory remarks-it is now in the data itself.

I am strongly opposing the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 because I think the overwhelming majority of people in this parliament have no idea about what the retention of data actually means for the Australian community and for society in general-or what it could mean in the longer term. Up until now, because we could only deal with relatively small datasets, we have always looked for evidence, analysis and causation. We have looked at the dataset, looked at the evidence, tried to work out the causes and tried to extrapolate that to support evidence based decision making. Causation was where our focus was. Now the whole world is going to be shifting. We are going to be exchanging causality for correlations-in other words, no longer actually needing to know why, just focusing on what.

You get the correlation in the data and that gives you information about where people go, what they eat, who they see, which doctor they go to and so on. What does the information mean? There is nothing about causation, nothing about evidence-it is just about the correlation. It has reached the point where, with that data, the more you know about people-where they go, what they do, what their health is-the more valuable that data is to various businesses. The problem we have is that, if you collect data on people, no matter what the primary purpose of collecting it is, you do not know how, in two years time, that data might be used. It might be used for something entirely different. The data itself is now the product that is valuable to corporations, to governments or to anyone who gets hold of it. It enables them to make decisions; it enables them to develop and sell goods and services. The book, Big Data: A Revolution That Will Transform How We Live, Work and Think, tells us:

Mobile operators have long been loath to monetize that information for fear of running afoul of privacy regulations. But they are starting to soften their stance as their financial fortunes flounder and they regard their data as a potential source of income. In 2012, the large Spanish and international operators Telefonica went so far as to create a separate company, called Telefonica Digital Insights, to sell anonymous and aggregated subscriber-location data to retailers and others.
So that is the new market for people who have the data-to on-sell it to other people for profit, and basically to use that data about people. The argument will be that you can make it anonymous. You cannot. It is clear that even if you try to make it anonymous you cannot, because the dataset will match somebody. And inevitably that person will be locatable. That is one of the big problems.

So here we have a parliament which is deciding to legislate to allow the data about every Australian to be kept by telecommunications companies for two years. That is incredibly invasive. The data is going to tell you everything about that person-where they have been, the fact that they used their phone and who they spoke to, for how long they spoke and then the network of people that those people have spoken to. There will be a whole set of data built up about a person.

Who is going to have access to that data? There is no saying in this legislation that that data is going to be held and controlled by these corporations in Australia, under Australian privacy law. What is to stop one of these providers, who will store this information for two years, storing it in another country, where the privacy laws are not the same as Australia's and that-as Telefonica has done-they will allow access to that data to medical insurance companies, for example, who might decide that they want to determine whether they should give someone health insurance or adjust the cost of that health insurance over time?

There was an extraordinary example that I read about, where a car company is designing the most up-to-date seats. When you buy or get the car you can log in the impression of your body as you sit upright in the seat of that car. It will then program the car so that if you slump over the wheel or start going to sleep, the car will wake you up. It is meant to be a safety device, but the data is owned by the company. The company can then make that data available to law enforcement agencies or insurance companies, in the case of an accident, to say that you went to sleep at the wheel of that car or that you were distracted, leaning across or whatever you were doing, because of the physical imprint of you sitting in the seat. If you were not sitting up, that information can be made available and you could find that the data will get you, in the end.

We are getting to the point where people are making themselves vulnerable to the data collection agencies that hold the data. They could on-sell it or make it available. They could be vulnerable to being hacked. Yet this parliament is saying that 23 million Australian people are going to have all their data stored somewhere. The government and Labor think that it is perfectly all right to do that.

Already up to 80 agencies are able to access people's data. That is going to be pared down in this legislation, but the big flaw is that all those agencies have to do is to apply to the Attorney-General, and he or she can then allow those new agencies to be on the list of agencies that can collect the data. We have no idea what the Attorney-General of the day will rubber-stamp in terms of saying that any of these agencies can have access to the data.

Of course we know that ASIO, the police and all of the law enforcement agencies will want this. It is being dressed up to look as if it is to deal with terrorism. Nothing could be further from the truth. These agencies-up to 80 agencies now-want this data because it makes it easier to track down information about people or to engage in audits of compliance, enforcement and the like. It is a matter of considerable concern that these agencies wanted data to be stored for five years. They are not going to get it; they are getting two years-but that is, in fact, too many. There is a real concern here about what is going to happen to information that pertains to all Australians.

And, as I said, what about confidentiality? The Labor Party seems to think that it has made some very thin confidentiality arrangements to protect journalists and their sources-I will come back to that; it does not protect journalists' sources-but what about doctors and lawyer groups? What about any of those organisations which require and demand privacy of information? They will no longer have that privacy, because there is only one group of people protected through this fairly thin provision for a new public interest advocate. What about the people who provide the information? What about doctors? What about lawyers? They are not covered.

In fact, any information about any individual can be uploaded and held for two years. There are no confidentiality provisions. This legislation undermines everything we have understood about the rule of law and about professions that are protected in terms of the information that they hold. As I said, the idea of causality has gone; we now have the idea of correlation. Correlation allows people to work out probability. So we are going to get profiling of people and communities as being likely suspects in particular crimes-these groups of people have a greater probability, according to the data, of committing a crime. It does not allow for individuals in the community or for any analysis of other things in the community. So you are going to get additional policing and surveillance put into those areas, and that is completely unnecessary.

We are not saying-and I heard a few comments earlier to this effect earlier-that the Greens do not want to see adequate surveillance from police and law enforcement organisations dealing with terrorism. Of course we do. And that is why there are data preservation orders. If they have reason to suspect that somebody is likely to be involved in criminal matters then they can get a data preservation order. So 'targeted' is one thing; indiscriminate surveillance of an entire population under the guise of terrorism and national security is quite wrong. This has been on the agenda for a long time. Under the shadow of terrorism, we have had Labor roll over, go and join up with the government, and agree to legislation that will lead to surveillance of all Australians.

I just want to go to this public interest advocate that has been set up to oversee the metadata searches on journalists. There are a number of problems with that. There are no rules requiring the Attorney-General to seek the views of the public interest advocate to argue against warrants being issued for journalists' metadata. In addition, it will be an offence involving two years' jail for anyone to disclose that a warrant for metadata has been requested or applied. So the journalists will not be able to contest the idea that this has actually occurred.

Testimony from the Attorney-General's Department, combined with evidence from countries which have enacted data retention, has shown that there is no evidence of improved crime resolution statistics once data retention is enacted. Law enforcement agencies have consistently claimed that the extra powers are needed, but they have failed to provide any concrete examples of why it is needed-and in fact it is to the contrary.

I was surprised to see that the Attorney-General was going on about how this is the way that Western nations are going. No, it is not. Western nations are actually going in the opposite direction. That is why I said in my opening remarks that this parliament is playing catch-up. The fact of the matter is: the European Union had a data retention directive on this in 2006. In 2006, John Howard was Australia's Prime Minister. I do not think he would even have had any idea of what data was doing at that particular time in terms of retention or in terms of the transformation of what it would do. That was in 2006. Since then, countries have been winding it back. In fact, the European Court of Justice found it is unconstitutional. Austria has used it-for theft, for drugs, for stalking, but not for terrorism. Poland has used the data, mostly for civil disputes and to assist in divorce cases. In Denmark it was given up in June this year. And Germany abandoned the legislation in 2010.

So it is not about national security. It is about collecting data on every Australian, for every law enforcement agency and regulatory compliance agency to use. You will get this surveillance capacity and this data being used for everything from crime to trivial infractions of various things, for the tax office, the ACCC, ASIC, fisheries, health compliance agencies, local government and even the RSPCA. There are any number of organisations which have accessed data for various reasons. That is where we will actually end up in this country. Once you are identified, once your data is there, it will be used. We cannot even know now what the secondary use of that data will be, either next week, next year or in two years' time-how you might be able to use that data or what it is actually for.

Then we go to the cost of it. This is an extraordinary thing-that we have the Labor Party agreeing with the Abbott government that we go ahead and conduct the collection of data on every Australian for two years, and we have no idea what it is going to cost and no evidence that it actually assists in doing anything about terrorism. This is an extraordinary lie to the Australian people that is being perpetrated.

Let us go to cost for a moment. We have no idea what it is going to cost. The companies and government agencies not only will need to store the data but have to ensure it is stored safely. As I said before, how do we know that it is even going to end up being stored here?

It will be very attractive, for the reasons I indicated earlier, to hackers, and I want to know how the government is going to guarantee, if the data is not stored in Australia, how it will meet Australian privacy laws or will be protected from hacking. But let us go to the actual cost. What is it likely to cost a year? We have had all this talk. We had a budget emergency; now we do not have a budget emergency. Last year's budget was to fix the emergency; this year's budget is going to be dull. It is very interesting the way that the news about the budget travels. But what is the cost? Australians deserve to know how much the government intends to contribute to the mass surveillance of the Australian population. How much money are we going to put up to have this surveillance on ourselves? Surely the parliament deserves to get an answer to that question. We do not have an answer to that question. And it is fundamentally wrong.

Then we get to this idea that, if you are not doing anything wrong, you have nothing to hide. That is what the Stasi said in East Germany as well. And it is what every police state has to say: 'We will follow you. We will do surveillance on you. But do not worry about it; if you have nothing to hide, it won't be a problem for you.' Well, we saw what happened with the Stasi in East Germany and we know about the chilling effect that this will have on people. It will mean, for example, that you will know who attends a protest rally, for example, anywhere; you will have their location, if they make a call or have their phone on them while they are there, as they attend that rally. What is it worth to a foreign government to know who has been there and which of their overseas students was at a rally against human rights abuses, for example? Who knows how anyone is going to use this data on particular individuals. So this idea that if you are not doing anything wrong you have nothing to hide is no excuse whatsoever for this invasion of people's privacy.

When you get to the issue of trusting our government bureaucracies and intelligence agencies, what about the scrutiny? What about the oversight that we need? You know that if there is not proper oversight you will have corruption and you will have creep in what this data will be used for. Today people are deciding which agencies can access it but, as I indicated, the Attorney-General can change that anytime-add new agencies add different levels of surveillance-and that is where we will end up on this.

When we get to looking at this as an overall objective in Australia, I think it is really sad that we have got to the point that we are legislating without evidence. (Time expired)


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