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EXCLUSIVE: Ex-head of ASIO, David Irvine, on Data Retention Laws

by Jackie Dent
27 March 2015

Ahead of the IQ2 debate “Only the Wicked Need Fear Government Spying” on March 31, ex-head of ASIO, David Irvine, spoke exclusively to the Ethics Centre’s Jackie Dent about Australia’s new data retention laws, which have passed through the Senate. 
 

Jackie Dent | Why is it that some would argue security is outweighing values about privacy?

David Irvine | When you talk about human rights, the key human right is the right to life and safety. In order to achieve that, governments have to conduct intelligence and security activities which involve, from time to time, an intrusion on people’s privacy; and at other times, intrusions and impingements on their other rights – for example, the right for the government to compulsorily question someone on an issue. This is not new. We have impingements on our civil liberties and human rights in a whole variety of areas. I could argue it is my right to drive over 60 kilometres an hour in a 60 kilometre hour zone, for example.

These impingements occur all the time. In regard to privacy, governments ultimately have to decide whether or not impingements on privacy are necessary and in the national security interest in order to protect the lives and safety of Australians. At the same time, in making those decisions, governments have also set in place a whole series of processes, which govern how those activities can be carried out, when those activities can be carried out and the extent to which those activities can be carried out.

With the metadata laws, they obviously attract a lot of criticism of the intelligence services and the police. While they argue ‘we just want to target people who are suspected terrorists and criminals’, it means that all of us come under mass surveillance.

But you don’t come under mass surveillance! And if you did, you’ve already been under it for the last 30 years, because, since about 1979, police, ASIO and other agencies have had the power to go to the telephone companies and ask for certain information relating to telephone calls, mainly relating to billing information. We’ve always had that power! And we are not seeking to change that. In those 30 years there have been very few examples where people’s privacy has been unnecessarily infringed or where the agencies have been criticised for a misuse of that information. Although it may have occurred on a few occasions – you can’t be 100% certain.

The reason we need this legislation now is that with digital communications technology, the phone companies themselves are finding they may not need to keep the metadata related to a communication for as long as they did in the past. So, in fact, nothing has changed in terms of the basic principles of agencies being able to look at billing information – they’ve always been able to do that. What is changing is that the companies will now be required to keep it for a certain period of time.

People argue that knowing that metadata means you can know a lot about people’s lives.

And that is the whole point of seeking that metadata when you are conducting a specific inquiry.  But stop for a moment and think: you are saying you are concerned that governments will use metadata to profile people’s lives. That is precisely what the major international and national companies operating on the internet are doing already. 

But it is voluntary – you choose to use Google, you choose to use Facebook.

You mean you wouldn’t not choose to use Google because they are reading your emails and they are reading your Google requests?

But still it is voluntary. I chose not to use certain apps because I don’t want to give away my private information.

I don’t hold with that argument in relation to metadata. If you want to use certain services, you abide by certain conditions; in this case, the government has set a condition for more than 30 years that your telecommunications metadata may be examined by authorised authorities — you may not have known about that condition when you subscribed to the telecommunications service.

There’s a really important point here. Are you arguing that it is OK for Microsoft or Google to profile you in order to sell you a new BMW, or some beauty product, that is alright for them, but it’s not alright for the government on a very selective basis to access telecommunications metadata in order to save lives? That to me is a very distorted and worrying argument.

I guess people get scared because they think the state can do a lot more to them than Microsoft.

The difference is the state is very, very much governed by the laws under which it operates.

Liberty is an old and ongoing debate.

It will go on forever and the tragedy of it is – and we tried to pre-empt this with the metadata and the intelligence legislation debate — the tragedy is it only intensifies after you’ve had some sort of horrific incident. It’s what I call — and this happens a lot on the intelligence business — “disaster driven reform”. Certainly, when I was in ASIO we tried to avoid that by bringing forward these issues for consideration three or four years ago.  The metadata issue has been debated in parliamentary committees for at least three years and predates the current, heightened concern about terrorism.

In regard to terrorism, we are living in a ‘high risk’ situation...

Higher risk.

If you look globally where most of the terror – I think of the thousands of attacks that have happened, they are in the Middle East...

Middle East, Africa, France, Belgium, Denmark...

But in terms of death toll, you could argue, Australia really...

I find that argument just a little worrying. I’ve had people say to me, and I’ve read in the papers a learned academic saying things like, “More people are killed on the roads than in terrorist attacks, so why are we worried about terrorism?”  This completely ignores the psychological impact that terrorist attacks have, and the fact that one success will breed others.  It is almost like saying we are putting a monetary value on life. Is it OK for one person to be killed and therefore we won’t do anything? Where would you set the quota for the number of deaths before you start to do something? How many people would have to be killed before we say, “Oops, we have a problem?”

Can you see the point of view of people who feel that their civil liberties have been curtailed? This is the argument – the state is using the war on terror to gain greater control of our lives.

For what purpose?

Power?

As a person who highly values his civil liberties and privacy, I don’t buy that argument.  I do buy the argument that, as time goes by, the changing nature of the threat to the lives and safety of Australians requires governments to operate in slightly different ways or to determine that certain practices be continued, for example, on metadata – and that it is done in order to protect people. Why do you always assume the worst of your governments – that they are not there to protect you; that they are there to simply exercise power for whatever vicarious pleasure that gives them?

When working for ASIO, you are working with people who have an extraordinarily strong commitment to Australian values – that is what they are doing. They are protecting Australian values and Australian lives; every time they have to do something which impinges on privacy or in some other way impinges on a human right, it is done by people who are very responsible and who, by and large, are trained to act proportionately and to take that privacy and the right to individual liberties into account. It is never done willy-nilly, and always for a good reason. Finally, it is done rarely and in a highly targeted manner — the notion of indiscriminate “mass surveillance” is as much anathema to the people of ASIO as it is to everyone else.

 



Tickets are still available for the IQ2 debate "Only the Wicked Near Fear Government Spying" on March 31.

Image Credit: ABC