Data retention article

July 23, 2012 |

In today’s punch Lisa Cairpis has written a fascinating article titled Who’s surveilling the surveillance cops?

It provides:

Last week I was grilled by Derryn Hinch of 3AW Drive fame about my legal complaint against Victoria Police for their retention of footage taken of me at a peaceful protest in 2010. Derryn wanted to know what I was so concerned. “If you’ve done nothing wrong, if you’ve got nothing to hide, then why does it bother you?”, he was basically asking.

Three’s a crowd… At a certain point, this all gets a little over the top

It’s not just about the mere fact that there is footage of me. I’m also concerned about the logic that runs behind the very act of collecting and holding on to the footage. I am worried about the ways in which that footage could be used, or combined with other footage and information collected from other events, if indeed it can be retained.

The Victorian Civil and Administrative Tribunal (VCAT) last week heard arguments about the retention of footage of me by Victoria Police. The potential intelligence value of that footage was one reason put forward as to why the police cannot destroy the footage or de-identify my image. The Tribunal will make a decision in the coming months about whether the reasons given by the police are consistent with Victoria’s privacy and human rights laws.

This case, however, is just one sliver of a broader surveillance issue that should create concern for privacy and democratic rights.

Last week the government released proposals to massively expand the surveillance powers of Australia’s intelligence agencies to enable them, among other things, to intercept emails and information posted on sites like Facebook and Twitter. The number of ASIO (Australian Security Intelligence Office) staff, Australia’s primary domestic intelligence agency with an annual budget in 2010 of close to $4.5 million, has already trebled since 2001.

Earlier this year, news reports revealed the systematic spying on environmental groups by police, both state and federal, ASIO and even private companies via out-sourcing arrangements.

It’s not the first time the surveillance practices of police and other state authorities have been called into question. In December 2009, the police entered into a data sharing agreement to give the private companies behind the Victorian desalination plant access to police intelligence on desal protesters. An independent report found the agreement was in breach of human rights, information privacy and law enforcement data security laws.

Looking at these broader surveillance trends in Australia raises some questions. On the one hand, you could argue that government authorities holding on to information ‘just in case’ is a prudent approach to risk management. Let’s get as much information on people as we (lawfully) can and that way we can be sure that if the occasion should arise that proves it does contain something of value, we’ve got that info.

There are two problems with this logic.

First, it involves a characterisation of certain individuals or groups as a threat. Drill down into this some more and you have to ask: Why are these individuals and groups a threat? How much of a threat? To whom? There is something unnerving about a blanket characterisation and suspicion of people at for example a climate change protest that is said to warrant the indefinite retention of footage taken of them.

Second, this approach has real impacts on people and their information privacy and human rights, including the right to privacy, freedom of expression and freedom of peaceful assembly. Victoria and the ACT are the only jurisdictions with dedicated human rights protections.

These kinds of surveillance practices can have a “chilling effect” on people’s behaviour, changing the way people behave and express their political views – undermining democratic rights. Sure, these rights need to be balanced against other interests such as national security, but this balancing exercise must involve more than simply sweeping these rights under the carpet whenever the ‘security’ wildcard is played.

If we’re going to widen surveillance powers to allow greater collection of information about our private lives and activities then there is a critical need to make sure those powers are subject to certain checks and balances – particularly when it comes to the retention and use of that information.

The temptation to use powers for purposes and against people for which they were not intended is just too great. The case of the local council In the UK, which claimed that it was lawful for it to covertly spy on a family it suspected of lying about where they lived to get into a particular local school is one example. Commenting on that case a legal officer for the NGO, Liberty, said:

“Former ministers claimed that the innocent had nothing to fear but the sinister treatment of [the family] proves that these powers need to be far more tightly restricted and supervised.”

In light of past experience I think there are reasons to be concerned about the nature and the proposed expansion of surveillance powers in Australia. I can’t imagine I’m the only one.


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