The mountain of reporting on the Israeli invasion of Gaza and the downing of Malaysia Airlines flight MH17 has buried discussion of new laws that Federal Attorney General Senator George Brandis is attempting to pass through parliament. The National Security Legislation Amendment Bill (2014) will produce a significant shift in the way Australian intelligence agencies can collect information and collaborate. It may also expand the capacity of these organisations to work with the private sector, something that has already proven problematic for environmental activists.
The government and its allies are keen to portray the new laws as a response to a changing and more dangerous world; indeed, the Australian used almost exactly that phrase to title Cameron Stewart’s article in support of the new laws. Yet a more likely explanation is that the new laws seek to provide the legislative framework required for continued and expanded operations with the American National Security Agency (NSA) and at the newly expanded HMAS Harman facility, while also being bringing corporate assets and infrastructure under the wing of Australian intelligence agencies.
The argument Stewart makes about radical, violent Islamism posing a major threat to Australian security, especially with some dozens of Australians fighting with Islamist groups overseas, is essentially the same put forward by ASIO chief David Irvine. Certainly, if the overt and covert police presence at the recent Melbourne rally in support of Gaza is any indication, state and federal police organisations are very concerned about Middle Eastern and Islamic communities becoming politically active, particularly if this involves collaboration with the organised Left.
The Snowden leaks have shown that, despite George Brandis and David Irvine’s protestations that ASIO and other intelligence agencies will not engage in mass surveillance, Australia is already complicit in such activities. The legislative changes proposed by Brandis will further facilitate ASIO conducting this sort of espionage by enabling retention of Australians’ communication and data records, allowing ‘a class of persons’ rather than named individuals to execute warrants and by creating a new ‘identified person warrant’ that will enable ASIO to ‘utilise multiple warrant powers against an identified person of security concern’. Furthermore, the Attorney-General will be granted powers to modify warrants where ‘changes in circumstances or administrative errors are identified’, meaning that pools of analysts will be able to sort through massive caches of data (including actual content) to find evidence with little proactive oversight (the same approach that led to analysts sharing intercepted sexual photographs, according to Snowden).
Steve Dalby, the chief regulatory officer from iiNet, puts it like this:
It’s the equivalent of collecting and storing every single haystack in the country, indexing and filing all the straws, keeping them safe for two years, just in case there’s a needle, somewhere. We don’t know if there’s a needle, but there might be.
Another area of concern is the apparent license to create and deploy malicious code, either directly to a target’s computer or via a third person computer network (such as Facebook, Youtube or email) in order to gain access to data relevant to a security investigation. Specifically, the Bill seeks to allow ASIO to ‘add, copy, delete or alter data in [a] third party computer or communication in transit [for] the purpose of obtaining access to data relevant to the security matter and held on the target computer’.
This technique has already been used by the FBI in its take down of child porn and drug distribution networks on the dark web, while the exposure of PRISM and the ‘voluntary’ closure of anonymous email provider Lavabit shows that collaboration with or strong-arming of private companies has been an integral part of gaining access to computer networks to spy on users. Together with suggestions that the NSA has obliterated the protections afforded by encryption, and the sudden implosion of TrueCrypt, options for activists and others seeking to avoid surveillance while organising and communicating digitally have become quite limited.
The threat posed by these activities extends well beyond the criminal world. In the last years, we have seen that Australian governments are intensely concerned with tangential links with international groups employing violence as a tactic, with anarchism generally (especially when the information they are given about the latter is hyperbolic nonsense), and with environmental activism (so much so that the former Federal Minister for Energy Martin Ferguson even ordered invasive surveillance of anti-coal activists at the request of energy and mining companies).
The activities of corporate spies at the Leard State Forest blockade may well be indicative of the activities to which George Brandis refers to when discussing the need to allow collaboration between ASIO and the private sector. In that instance, coal mining company Idemitsu had hired several private intelligence companies to infiltrate and potentially disrupt the protest encampment. Under the new laws, such activity might not only be sanctioned by the federal government, it could also be lent support by the legal intelligence sharing of personal information and data. It remains to be seen whether the expansion of legal protections for ASIO operatives and affiliates will extend to granting immunity to private operatives and assets who pursue sexual relations with (that is to say, rape) activists in the course of their work. With regards to the criminal penalties being suggested for journalists who disclose details of intelligence operations, I am tempted to suggest that this is a replacement for the old D Notice system: even if stringent internet traffic filtering was brought into effect, it would probably be easier, politically and otherwise, to gaol a ‘treasonous’ journalist.
George Brandis is correct when he says that the National Security Legislation Amendment Bill will modernise and streamline Australian intelligence operations. Despite the chaos besetting the Abbott government, it is likely that this legislation will be passed with the support of the ALP, in a considerably less cack-handed manner than when Labor passed the Wikileaks amendments.
The new laws represent another step in the insidious growth of mass surveillance and may pose a considerable impediment for activists relying on digital communication to organise, locally and across borders.