Insulted, ASIO? That’s not really the problem, surely?

There aren’t many places in the world where you can openly accuse the nation’s top police and intelligence agencies of having an attitude problem, as I did on Monday, without being visited by the men in the van with the canvas sack. Which is a good thing.

In this week’s Patch Monday podcast, embedded immediately below for your convenience and CBS Interactive’s traffic logging, I departed from the usual format to present a personal opinion.

Data retention for law enforcement is one of the most important political issues relating to our use of the internet now and as far into the future as we care to imagine, I said, and it’s being mishandled.

The Australian government’s current one-page working definition (PDF) of what constitutes communications metadata (which can be requested by law enforcement agencies without a warrant) as opposed to communications content (which generally does require a warrant) is, to anyone with a technical understanding of how the internet actually works and is evolving, virtual gibberish.

“Dangerously immature” is how I described it.

I also raised three points where I think the version of reality being promoted by the Australian Federal Police (AFP) and the Australian Security and Intelligence Organisation (ASIO) is wrong.

  • This is a push for more power. We conduct so much more of our lives online than we ever did on the phone, and that means the balance of power is changing. We need to have a conversation about this.
  • The AFP says quite specifically that they’re not after our web browsing activity, but I don’t see how the working document supports that argument. And other agencies, including the Australian Securities and Investment Commission (ASIC), are after that stuff.
  • ASIO and the AFP constantly talk about the powers being needed to catch the terrorists and pedophiles. But the law will probably be modelled on the current law for the phone, which provides access to communication metadata to many other agencies with far less stringent accountability rules for many other, far less serious, crimes.

Please have a listen and tell me what you think.

Play

The podcast stands on its own, but I want to emphasise the thing that still disturbs me…

In a Senate committee last week it seemed that the head of the Attorney-General’s Department and others were… irritated, shall we say, that someone might challenge their view that everything was quite clear and we have nothing to worry about.

Similarly, in the very fine episode of ABC Radio’s Background Briefing last Sunday the head of ASIO, director-general David Irvine, positively bristled:

David Irvine: Most ASIO officers would find it frankly insulting to think that an organisation which prides itself on acting in accordance with the law and with very, very heavy accountability processes would allow itself to deviate into unwarranted intrusions into privacy. And there’s a practical… we don’t have the time to do that. We have no need to do it. Why would we do it?

And later:

David Irvine: The powers that the director-general of ASIO has are very, very tightly prescribed by law. The guarantees and the safeguards are there. It doesn’t matter who is appointed director-general of ASIO, the director-general has to operate in accordance with the law and with all of those regulations, and the oversight is there. You shouldn’t really be quite as worried as you seem to be in your questioning.

Have a listen to Background Briefing for the full interview, or my podcast for the relevant highlights.

What I think is wrong here is that both ASIO and the AFP are getting their backs up because we’re asking questions. But asking questions is our right. And if the answers seem defensive, or even evasive, I think we have grounds to be concerned.

When ASIO was set up in the wake of World War II, the threats were much clearer. Communism and The Bomb. ASIO has grown and the threats have changed, so it’s time for a new dialog about their role. Same for the AFP and their world.

I can think of three possible reasons why these agencies are getting ruffled.

  1. Are they trying to cover up Bad Things? I suspect not. Australia’s intelligence and law enforcement agencies are at the honest and reliable end of the global spectrum. I think. Though of course that doesn’t rule out the possibility of individual officers doing Bad Things.
  2. Are they insulted when we question their motives? Yes, they are. Isn’t there some rule of thumb that says dishonest people get evasive when questioned, honest ones get angry? Is it that simple? Either way, if they are insulted that we question them, it’s because they’ve failed to explain themselves properly. Sure, their world is SEKRIT and us proles aren’t part of their special little club. But I think we deserve something a bit better than “Look, just trust us, OK?” This isn’t 1942 any more.
  3. Are they embarrassed by their incompetence? I don’t think it’s incompetence as such, but unfamiliarity with the rapidly-changing landscape. The AFP and senior Attorney-General’s Department officers seemed genuinely to believe that their working document was clear. But they’re not geeks. Geeks are seen as underlings, and underlings don’t get to explain things to politicians. I think we were seeing genuine and quite understandable discomfort at being questioned about something they didn’t know intimately at a technical level. But this can be fixed with honest dialog. And hey, we’re all learning in this new environment. Relax.

Overall, it’s great that Attorney-General Nicola Roxon has opened up this can of worms for public debate. About time. And now it’s time for the law enforcement and intelligence agencies to come to the party as well, with more of the open and honest communication.

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  1. Mike Cowley’s avatar

    Well said Stil. That pillock from the AG’s office in the Senate estimates in particular was pathetic. If they really can’t understand why people might have legitimate concerns about the powers given to secretive organisations that (through necessity, granted) operate with limited transparency well… they can’t be that stupid surely, so they must be disingenuous. I wonder if they have a file on the Greens?

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  2. SP’s avatar

    I have yet to listen to the podcast (it’s in my regular queue so I’ll get to it in due course) but one comment you made above resonates quite strongly:

    “Geeks are seen as underlings, and underlings don’t get to explain things to politicians. I think we were seeing genuine and quite understandable discomfort at being questioned about something they didn’t know intimately at a technical level.”

    This affliction is not reserved just for the geeks. It is shared amongst anyone in public service with the good fortune to be good at what they do and know their stuff. Inevitably, as drafted advice moves up the chain, the detail is removed in favour of keeping things brief. It’s not unusual for deeply complex issues to be required to be explained in a page and a half of 12 point text spaced 1.5 lines apart with, if you’re lucky, attachments that are more likely than not never read with the attention they require.

    And thus is policy formed.

    I have no doubt that there are a handful of intelligent and well-informed mid-level APS staff in A-Gs quietly fuming “But that’s not what I wrote FFS!”. Poor bastards. We’ve all been there.

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  3. Marc Lehmann’s avatar

    Excellent work as always Stil.

    It’s time to wake up sheeple. It’s naive to think that any intelligence agency isn’t wanting as much access to content as possible. In their shoes, you are so much more effective with access to warrantless data. Most of them don’t care that the people pay the price in freedom and privacy. There is a very real “you shouldn’t have anything to hide” mindset in these agencies.

    I also think there’s motivation in agencies to have laws and regs to use encompassing language. “Internet” is just that. In this way “content” might be deemed to be a part of the “internet” in legal situations. Then precedents and laws will start spinning off that.

    ASIO should be allowed to collect and monitor content for all devices and activities of an individual BUT it absolutely must be via a warrant (preferably single warrant for convenience). Without the warrant it is a VERY dangerous development. Without the warrant process we risk stepping towards the US system which is now a warrantless analysis and active categorisation of the population including their buying, browsing, political, social and other activities.

    This leads to all kinds of activity where governments can breech our trust and stop being public servants. e.g. Veterans in the US being treated as a terrorist risk for simply disagreeing with the war(s) or having a conspiracy theory around it. Lots of evidence suggests that the DHS in the states even considers and marks individuals as being at a higher terrorism risk level for engaging conspiracy theories because of their browsing and social network activity. This is not the governments role as it swaps way to many human rights and liberties for the benefit gained. The people become fearful and subservient to, instead of being served by, the government. Bush started this but Obama is really ramping it up. They would love to take us all (AUSCANNZUKUS) along that path. Even more so after Julian Assange.

    In the US innocent people are being put on no fly lists because of their perfectly legal content browsing activities correlating with for example buying a gun (which lots of americans do normally). See this example last week http://www.wired.com/threatlevel/2012/10/left-behind-by-no-fly-list/

    We don’t want this forming in Australia. We still have some of our liberty unlike our US friends.

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  4. Stilgherrian’s avatar

    Thanks for your comments. There’s now a follow-up post with some observations by terrorism research Andrew Zammit.

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