Data retention — what it is and why it’s bad

OK, but we’ve already given away our privacy to Facebook etc, haven’t we? Why shouldn’t agencies that want to protect us get the same data?

This is an argument routinely used by data retention advocates, and by Irvine himself. But going on Facebook isn’t compulsory. Citizens choose to use social media or other online platforms and voluntarily engage in the swap of privacy for services that so many applications are built on. Maybe they don’t understand the full nature of what they’re losing in that transaction, but it’s still voluntary. There is nothing voluntary about data retention — not unless you want to withdraw from the 21st century and not use telecommunications and online services.

But agencies say they need it to help prevent and solve crimes.

Let’s look at what happened in Europe. A German parliament study concluded data retention in Germany had led to an increase in the crime clearance rate of 0.006%. (The German scheme was later ruled unconstitutional.) Danish police, who have a much wider metadata and content data retention scheme, said the sheer amount of information was too unwieldy to use.

But such-and-such a high-profile crime was solved with metadata.

Maybe. But that metadata was available without a data retention regime. As the German study demonstrates, the number of crimes solved because of old metadata that would not otherwise have been available is negligible. And anyway, in Western societies, we have long accepted that there is a trade-off between the rights of the individual, including a right to privacy, and the state’s power to protect its citizens. We understand that our civil liberties make it harder for the state to prevent, detect and punish crime, but value them enough to keep them anyway. Data retention alters this balance in favour of the state.

But we can trust our agencies to do the right thing.

Australia’s agencies generally have a better record of behaviour than foreign agencies. For example, repeated abuses such as stalking women, sharing intimate photos and listening in to intimate conversations, have been revealed to have occurred in the NSA; the CIA recently spied on the Senate Intelligence Committee while it was preparing a report exposing the agency’s use of torture; MI6 abducted and rendered Libyan dissidents to the Gaddafi regime for torture in exchange for help in the War on Terror.

However, ASIO, the Australian Federal Police and the Australian Secret Intelligence Service are by no means perfect, and serious questions remain, for example, about both ASIS’ bugging of the East Timorese cabinet in 2004 and ASIO’s efforts to intimidate and gag the whistleblower who revealed it late in 2013. We also know from Edward Snowden that Australians intelligence agencies use electronic surveillance not for protecting us from terrorists, but for economic espionage.

The problem is that, unlike normal government bureaucracies, intelligence agencies have minimal public oversight or accountability, and can use national security as a justification to resist media scrutiny. The lack of oversight means incompetence, corruption, mission creep and criminal activity are far less likely to come to light than in normal government agencies. Public transparency is one of the key motivations for public servants to behave appropriately, and it doesn’t exist for agencies engaged in surveillance. And the more personal data they have access to, the greater the temptation.

But if you’re not doing anything wrong, you have nothing to hide.

Wear clothes in warm weather and have blinds in your windows? What are you hiding?

Are you happy for everyone to know where you are all the time, who your friends are, whom you’re having a relationship with, everyone you call, whether you have a medical or financial problem? It is not up to privacy advocates to “prove” the right to or importance of privacy. All governments acknowledge it is a fundamental right. If you support breaching that right, it is up to you to make the case, not demand privacy advocates defend it.

And law enforcement and intelligence agencies don’t merely target people “with something to hide”. People as diverse as whistleblowers, journalists, politicians, non-government groups and activists are subject to surveillance by such agencies, despite not having “done anything” other than reveal wrongdoing by governments and companies and protest against it. Data retention thus indirectly threatens core processes of democracy like whistleblowing, political organisation and scrutiny of governments. And once information is collected, agencies will press for its permanent retention. Some already argue that information should be retained forever. That means all future governments will have access to it. You may be comfortable with the current government having access to your data — but what about all future governments?

And law enforcement and intelligence agencies aren’t the only groups who have access to metadata. In Australia, bodies as diverse as local councils, the RSPCA and health bodies can obtain telephone metadata on citizens without a warrant.

But this is about stopping terrorism — the ends justify the means.

Terrorism is a wildly overhyped threat in Western countries. About three times more Australians have died falling out of bed since 2001 than have died at the hands of terrorists; more Australians die from diseases like shingles and chickenpox than from terrorism. More women and children die at the hands of the partners and parents in Australia every year than the total number of Australian victims of terrorism. More Americans die from causes like malnutrition, falls, swimming accidents and work accidents each year than the entire death toll from 9/11. The level of spending we direct toward national security is completely unjustified in terms of the harms it prevents.

As a threat to the health and lives of Western citizens, terrorism is negligible compared to deaths caused by poor infrastructure, bad health policies, unsafe workplaces or poverty. Data retention would be yet another expensive, intrusive national security policy that has no objective justification. Doing things in the name of stopping terrorism relies on our emotional fear of attacks, rather than making the case for taking away our rights.

This article originally appeared on Crikey.