A Tale of *Three* Bills: Australia joins and an update

A while ago, I began a new feature: A Tale of Two Bills. Both the UK and Canada had stated their intent to legislate for increased surveillance powers and data retention to better combat crime in the way mandated by the European Convention on Cybercrime. Since then, progress has stalled or failed to start. We are now joined by Australia, whose government also wishes to increase its surveillance powers over the internet in the interests of joining the Convention.

(Here I use ‘CSP’ to mean Communications Service Provider and cover both Internet Service Providers and telecoms companies. Information about Canada is from Michael Geist’s blog and my own study of the legislation, the UK from the Open Rights Group)

First, to Canada: Bill C-30 was published in February:

  • Police and other intelligence organisations can get access to traffic data (the where and when of internet communications) automatically without a warrant – up to now, CSPs could refuse, though they didn’t in 95% of cases
  • The bill requires CSPs to retain ‘communications’ and allows them to voluntarily give it to the intelligence agencies/police (they can refuse, then the government must seek a court warrant for disclosure or retention) – just so you know, what’s encompassed in ‘communications’ is “a communication effected by a means of telecommunication and includes any related telecommunications data or other ancillary information.” So it’s more than just telecommunications data (the where, who and when) and presumably means the content
  • requires CSPs to obey an order from the government to install whatever surveillance equipment with whatever operational capabilities the government wishes them to, above and beyond provisions already set out in law

The Commons’ Justice and Human Rights Committee recommended an endorsement of the bill in a non-binding report with a few extra provisions; they wanted CSPs to be required by law to reveal the ‘who’ behind any traffic data, but want the content data to only be accessible via court warrant (but CSPs would be required by law to help with decryption where necessary), and for mobile phone providers to identify their customers. Only the official opposition dissented from this; the third party supported it. It’s important to note these MPs have no control over what goes into the final bill; it would be sent to a different committee.

At the same time as this, the government is also abolishing the Inspector General for the Canadian Security and Intelligence Service an organisation which will use these provisions) and transferring its responsibilities to the relatively toothless and overworked Security Intelligence Review Committee.

The bill was very controversial after the Public Safety Minister Vic Toews made some gaffes, among them comparing opponents of the bill to supporters of child pornography. It was going to be given special consideration in a wide-ranging ‘first reading’ committee before second reading, but given the controversy the bill is now likely to wait until after a Summer reshuffle when Vic Toews is moved or put on the backbenches and it may die on the order paper and need to be re-introduced if parliament is prorogued later this month.

Now, to the United Kingdom: a draft Communications Data Bill has not yet been published; it is currently going through cabinet committee but is likely to be published before the Summer recess in early July. A Home Office briefing note suggests the following features may be in the bill:

  • CSPs will be required to comply with requests for traffic data from intelligence agencies, police and authorised public authorities – they currently voluntarily can comply and do so in 63% of cases
  • Traffic and personal data will be required to be retained for a limit of a year
  • No increase in access to content data is proposed – it would still require a warrant issued by the Home Secretary
  • The Interception of Communications Commissioner’s role will be extended to cover CSP’s retention of data and would be covered by the judicial Investigatory Powers Tribunal

This bill is also very controversial, with Home Secretary Theresa May saying it will be sent to a joint pre-legislative select committee which will conduct a three-month long investigation and make recommendations. The government will then respond, perhaps change the bill, and it will then go through normal parliamentary processes, probably this session (May 2012-May 2013) where there will likely be big fights in the Commons and the Lords as rebellious backbenchers attack. Coincidentally, the Interception of Communications Commissioner is seen by some Liberal Democrats as not nearly aggressive enough in his investigations and may need more funding. A new commissioner will be appointed in 2013, which has the potential to strengthen the system.

In Australia, the Attorney-General Nicola Roxon has proposed increases in the powers of interception, length of data retention to two years, strengthening privacy protections but no real details are available that I’m aware of. This isn’t encompassed in a package of bills yet, and she has invited the Joint Committee on Security and Intelligence to inquire into the proposals by July 31st; the committee rejected her proposed terms of reference in May, wanting longer to study the proposals. We’ll know more once the terms of reference are published and the committee begins work. This is essentially pre-legislative scrutiny without a draft bill in a similar way to the UK started experimenting with in the 1970s.

It should be interesting to see the differences in results between the three committees who are all undertaking very similar investigations under slightly varying procedures.

The Australian Parliament is slightly different to the Canadian and British ones; the Senate is elected by what is essentially a party list system. In a similar way to the Canadian parliament, MPs and Senators must speak within time limits, although stages of a bill can also be time-limited by allocation of time motions in both houses. This Parliament, the House has increasingly referred bills to committee for advisory reports, though the committee stage equivalent (consideration in detail) is taken in either the whole House or the Federation Chamber. The Senate also refers some bills for advisory reports before committee of the whole senate. Procedure-wise, the Senate has always been much closer to the Australian House of Representatives than the House of Lords. In terms of political situation, the government in Australia is different from both the majority Canadian parliament and the coalition British one, instead ruling as a minority government reliant upon the votes of several independents to maintain the confidence of the House of Representatives and the support of the Greens to get legislation through the Senate.

The series so far:
Internet surveillance in the UK and Canada
Australia joins and an update

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