(mis)adventures in software development...

25 November 2014

We all have something to hide

Category Technology

We all have something to hide from mandatory data retention.

The Australian government recently introduced mandatory data retention legislation, and in the debate that followed, I heard a radio talkback host admit he wasn’t overly concerned by the prospect, on the grounds that if you don’t do anything wrong you have nothing to hide.

He couldn’t be more wrong.

Thinking “I have nothing to hide” is naive when it comes to mandatory data retention, and represents a failure to fully understand the implications.

Data retention is usually thought of as a technical issue, but that is a far too simplistic way of looking at it. Mandatory data retention has profound implications for privacy, the media, and basic democratic rights.

It’s not an abstract thing — data retention is every much an invasion of privacy as would be Tony Abbott standing behind you and watching while you masturbate to internet porn.

But the implications go far beyond an individual’s personal porn predilections, or even rights to privacy.

Just because you might think you have nothing to hide, doesn’t mean the same applies to everyone else. There are people out there with legitimate reasons not to want their metadata tracked by the government. Like, for example, a government employee who stumbles across proof of government corruption as part of their job. Data retention makes it less likely a person in this situation would come forward, knowing their phone records and internet usage are constantly being monitored by the government, and that there are likely to be unpleasant personal consequences.

A strong democracy sometimes needs whisteblowers to uncover corruption or other inappropriate behavior by those in positions of power. Sometimes it is in the best interests of the whistleblower to remain anonymous, and for journalists to protect their sources. This becomes much more difficult, if not impossible, when mass government surveillance is in place. Which is probably the whole point. The government is far more interested is using data retention as a deterrent to whistleblowers (not to mention illegal downloaders) than terrorists.

Then there is plain old government stupidity. Believing you have nothing to hide if you haven’t done anything wrong is somewhat predicated in the false believe that governments — and all their employees and associated actors — are always sensible and rational and act intelligently. And most importantly, always make sensible laws.

This is hardly ever the case.

There are lots of laws, for starter. More than any one person can keep in their head, which is why we have specialist lawyers. How can you be sure you haven’t broken some law, if you’re not aware of every single law?

Everyone is guilty of something, no matter how trivial — or stupid.

And there are lots of stupid laws. For example, in Victoria: it’s illegal to be near or inside a house that is used regularly by thieves; only licensed electricians are allowed to change a light bulb; you can’t fly kites or play games in public which annoy people; you’re breaking the law if you have an article of disguise without a lawful excuse; you’re not allowed to sing an obscene song, tune or ballad within earshot of someone.

Who hasn’t been guilty of some or all of those things at some point?

Metadata retention is another stupid law, and gives more power to other laws, stupid and otherwise. Having a database of metadata gives authorities the possibly irresistible temptation to abuse their power in all kinds of creative ways. If a government agency decides to go after an individual — either vindictively, as in the case of a whistleblower, or simply because they mistakenly suspect an individual is guilty but don’t have proof — stupid laws and legal technicalities provide other means to hound that innocent person.

Having a database of metadata on everyone means the government will be able to arbitrarily find something to pin on just about anyone. If they desire to punish someone, the government will be able to trawl the metadata database in search of a crime or broken law that fits.

Just look at what happened to Freya Newman, the whistleblower who provided evidence that Prime Minister Tony Abbott’s daughter received a secret scholarship at a private design school. Abbott was opposition leader at the time, and his daughter, Frances Abbott, was his dependant. He did not disclose this scholarship, worth about $60000, and still hasn’t, despite disclosing far more trivial items. It appears the scholarship wasn’t advertised, hasn’t been offered since, and Frances Abbott received the scholarship after only a single meeting.

Regardless of the legality or propriety of it all, at the very least, the whole thing smells. The scholarship should have been public knowledge before the election. The Prime Minister should have disclosed it. The fact he didn’t makes it look even more suspicious. Especially since the private school in questions stood to benefit financially from the Liberal government’s education policies.

Despite this, Freya Newman was charged and found guilty. This is a disgraceful way to treat a whistleblower who disclosed information clearly in the public interest. Thankfully, a small measure of sanity prevailed, and today a Magistrate sentenced Freya Newman to a two-year good behaviour bond, with no conviction recorded.

What Freya Newman did might be technically illegal but it wasn’t wrong. She broke a stupid law, and for good reason. She did something even many legal experts didn’t realise was illegal to reveal private information the public had a right to know.

The legal system was then used to vindictively punish Freya Newman for revealing information that was inconvenient to the Prime Minister.

It’s an example of existing stupid laws being used for dubious intention by the state.

Mandatory data retention will give the government phenomenally more power and scope to do this. And not just the current government, but any future government.

Imagine the kind of thing a vindictive government could do with years of phone and internet records of an individual who does something that displeases them? Even if the individual’s actions are justified?

Mandatory data retention is a serious concern to whistleblowers, activists and journalists. But in an online, social-media-connected world, where it’s becoming almost impossible to use the internet without breaking some law, it should be a concern to all internet users.

With the government demonstrating they can and will use the legal system to punish the innocent, and the prospect of government agencies watching your every online move, do you really reckon you have nothing to hide?