The new data retention law seriously invades our privacy – and it's time we took action

Over the past few months, Australians’ civil rights have come under attack.

In April, the government’s data retention law came into effect. The law requires telecommunications companies to store customer metadata for at least two years. Metadata from our phone calls, text messages, emails, and internet activity is now tracked by the government and accessible by intelligence and law enforcement agencies.

Ironically, the law came into effect only a few weeks before Australia marked Privacy Awareness Week. Alarmingly, it is part of a broad trend of eroding civil rights in Western democracies, most noticeably evident by the passage of the Investigatory Powers Act in the UK, and the decision to repeal the Internet Privacy Law in the US.

Why does it matter?

Australia’s data retention law is one of the most comprehensive and intrusive data collection schemes in the western world. There are several reasons why Australians should challenge this law.

First, it undermines the democratic principles on which Australia was founded. It gravely harms individuals’ right to privacy, anonymity, and protection from having their personal information collected.

The Australian Privacy Principles define limited conditions under which the collection of personal information is permissible. It says personal information must be collected by “fair” means.

Despite a recent ruling by the Federal Court, which determined that our metadata does not constitute “personal information”, we should consider whether sweeping collection of all of Australian citizenry’s metadata is consistent with our right to privacy.

Second, metadata – data about data – can be highly revealing and provide a comprehensive depiction of our daily activities, communications and movements.

As detailed here, metadata is broad in scope and can tell more about us than the actual content of our communications. Therefore, claims that the data retention law does not seriously compromise our privacy should be considered as naïve, ill-informed, or dishonest.

Third, the law is justified by the need to protect Australians from terrorist acts. However, despite the government’s warnings, the risk of getting hurt in a terrorist attack in Australia has been historically, and is today, extremely low.

To date, the government has not presented any concrete empirical evidence to indicate that this risk has substantially changed. Democracies such as France, Germany and Israel – which face more severe terrorist threats than Australia – have not legalised mass data collection and instead rely on more targeted means to combat terrorism that do not jeopardise their democratic foundations.

Fourth, the data retention law is unlikely to achieve its stated objective and thwart serious terrorist activities. There are a range of widely-accessible technologies that can be used to circumvent the government’s surveillance regime. Some of them have previously been outlined by the now-prime minister, Malcolm Turnbull.

Therefore, in addition to damaging our civil rights, the law’s second lasting legacy is likely to be its contribution to increasing the budgetary debt by approximately A$740 million over the next ten years.

How can the law be challenged?

There are several things we can do to challenge the law. For example, there are technologies that we can start using today to increase our online privacy.

A full review of all available options is beyond the scope of this article, but here are three effective ones.

1. Virtual private networks (VPNs) can hide browsing information from internet service providers. Aptly, April 13, the day the data retention law came into effect, has been declared the Australian “get a VPN day”.

2. Tor – The Onion Router is free software that can help protect the anonymity of its users and conceal their internet activity from surveillance and analysis.

3. Encrypted messaging applications – unprotected applications can be easily tracked. Consequently, applications such as Signal and Telegram that offer data encryption solutions have been growing in popularity.

Australian citizens have the privilege of electing their representatives. An effective way to oppose continuing state surveillance is to vote for candidates whose views truly reflect the democratic principles that underpin modern Australian society.

The Australian public needs to have an honest, critical and open debate about the law and its social and ethical ramifications. The absence of such a debate is dangerous. The institutional accumulation of power is a slippery slope – once gained, power is not easily given up by institutions.

And the political climate in Australia is ripe for further deterioration of civil rights, as evident in the government’s continued efforts to increase its regulation of the internet. Therefore, it is important to sound a clear and public voice that opposes such steps.

Finally, we need to call out our elected representatives when they make logically muddled claims. In a speech to parliament this week Tuesday, Turnbull said:

The rights and protections of the vast overwhelming majority of Australians must outweigh the rights of those who will do them harm.

The data retention law is a distortion of the logic embedded in this statement because it indiscriminately targets all Australians. We must not allow the pernicious intent of a handful of terrorists to be used as an excuse to harm the rights of all Australians and change the fabric of our society.