View from The Hill

Metadata row will pose dilemma for Labor

David Irvine, ASIO Director-General, and Andrew Colvin, AFP Deputy Commissioner, speak during a press conference at Parliament House. AAP/Lukas Coch

The Australian Security Intelligence Organisation is a lot more open than it used to be – it even has PR people – but it was still remarkable to see ASIO head David Irvine on Friday in the PM’s press conference room, pitching for a proposed policy.

Tony Abbott’s senior communications adviser watched from the sidelines. Irvine ploughed on with answers even after she called last question.

The government is alarmed that it is already losing the battle over its plan to force telcos to retain metadata for two years, and on Friday all (competent) hands were out with mops and brooms sweeping up the mess created by Abbott and Attorney-General George Brandis earlier in the week.

Communications Minister Malcolm Turnbull did the early shift in the media. Then came the Blue Room joint appearance by Irvine (who was chief of Australia’s overseas spying outfit, ASIS, before putting the boot on the other foot by taking over ASIO, which pursues spies as well as terrorists) and Australian Federal Police deputy commissioner Andrew Colvin.

One big message they were all trying to get across was that the new system would not track where people went on the internet.

The agencies wanted to continue to have access to what they can already access, they said, but technological developments were reducing the need for companies to keep this information.

Turnbull summed it up: “What they are seeking is that the traditional telephone records that are currently kept … be kept for two years.

"And they also want the IP address, which is the number that is assigned to your phone or your computer when you go online … so that you can be connected on the internet. That’s recorded in [your internet service provider’s] records. They want that information to be kept for two years.”

The other end of the internet connection would not be covered. If the agencies needed to go after that, they may have to get a warrant or other legal authority (as now). In general with emails, the IP address of both sender and the receiver would be caught. The situation with social media remains unclear.

It was not just or even primarily the government’s case that Irvine and Colvin were spruiking. It was their own. The agencies can see their bid for data retention slipping away under the combined force of the commercial market place (telcos don’t want the bother and cost of retaining surplus data) and the politicians’ inability to sell the argument for the new arrangements.

In a submission to a Senate inquiry earlier this year ASIO maintained that “intelligence from telecommunications interception under warrant and telecommunications data has been critical to the identification and disruption of all the planned mass casualty terrorist attacks in Australia since 2001.”

Without modernising the law, however, “developments in the telecommunications environment will have detrimental consequences not only for Australia’s national security and law enforcement capacities, but for individual privacy”, the submission said.

In that submission, ASIO said that to discharge its functions it needed data to be retained for at least two years in some cases although “due to the nature of activity by clandestine foreign actors, retention for longer than two years would be ideal”.

Irvine, Colvin and Turnbull were much better advocates than Abbott and Brandis. But it will be a rough road ahead and the Labor party could be crucial in whether the government can land its plan.

The ALP has been having a great time exploiting the fumbling of Abbott and Brandis.

But Labor itself will come under cross pressures. Shadow attorney-general Mark Dreyfus is very familiar with the issue, which as AG he inherited from his predecessor Nicola Roxon. In the end he walked away from it because the election was bearing down and it became all too hard.

The opposition will have to juggle its security credentials versus its privacy credentials.

The security agencies are saying the threat from terrorism is becoming greater (although the alert level is not changed). If there were an attack and Labor had opposed updating protections, it would be in a bad space.

On the other hand many people are instinctively suspicious of the metadata retention plan, and this feeling could be particularly strong among some of Labor’s supporters.

The Privacy Commissioner Timothy Pilgrim said on Friday it would be important to consider whether a data retention scheme was “effective, proportional, the least privacy-invasive option and consistent with community expectations”. Any scheme should also be transparent, accountable and have “appropriate independent oversight”.

One compromise path for Labor would be to demand greater safeguards. The former national security legislation monitor, Bret Walker has suggested a warrant system for metadata requests. Irvine and Colvin on Friday rejected any idea of a warrant for each request, claiming it would overwhelm the system. “It’s the equivalent of asking you to write a three-page letter every time you want to look up the telephone book,” Irvine said.

At present there are more than 350,000 requests annually for data, with police the biggest users. Irvine, who was at pains to stress ASIO accessed and used metadata in a very carefully targeted way, did suggest that some sort of generic warrant arrangement could be manageable.

What the agencies have put in is an ambit claim. They can be politicians too.

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