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.

Podcast: Play in new window | Download (21.5MB)

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.