Surveillance state seizes its chance

 Glen LelievreThe raft of counter-terror legislation being introduced by the Abbott Government needs to be seen for what it really is: a campaign to control information, write Christopher Warren and Mike Dobbie.

The genesis for the latest round of changes to counter-terror laws began in 2009 with the  reporting of the raids that formed Operation Neath, followed by the 2010 publication of Chelsea Manning’s leaks and the 2013 revelations by whistleblower Edward Snowden of illegal misuse of metadata surveillance by the US National Security Agency.

The Abbott Government’s response has been three tranches of new powers. Their packaging has hidden the real intent of these changes. The first tranche wrapped up a series of additional powers granted to ASIO but it was really about targeting journalists and whistleblowers. The second tranche, ostensibly about Australians supporting terror organisations, seeks to extend sunset clauses by a further decade. The third tranche, on data retention, is about formalising and extending hitherto little-known surveillance activities.

The Government has rushed through the legislation despite the relaxed pace of reform up until now. Discussions about amending Australia’s counter-terror laws first began in the Attorney-General’s department in 2011 and it’s been more than a year since the report of the Council of Australian Government’s review of counter-terror legislation was tabled in Parliament on May 14 2013 – just three weeks before the Snowden revelations began.

As the surveillance state equips itself, it’s worthwhile revisiting the definition of whistleblower: a person exposing misconduct, dishonest or illegal activity such as violation of the law, corruption and threats to public interest, health or safety.

The new counter-terror laws have been squarely targeted at persecuting and prosecuting whistleblowers and the journalists who work with them. It will criminalise the work of journalists pursuing news stories in the public interest. It will target media organisations that broadcast or publish those news stories. It seeks to threaten whistleblowers to the extent that they will not dare to expose wrongdoing.

The first tranche contains section 35P relating to the unauthorised disclosure of information about a special intelligence operation (SIO). It carries a penalty of between five and 10 years jail. The Bill’s Explanatory Memorandum makes it clear that the offences in 35P apply to “disclosures by any person” or, in other words a whistleblowers and “persons who are recipients of unauthorised disclosure of information, should they engage in any subsequent disclosure” which captures journalists doing their job. The new Bill can also designate journalists and their employers can become a “third party” if they, for instance, interview persons who may be of interest to ASIO. Having been designated a third party they could be subjected to additional powers of surveillance, investigation and punishment.

The first tranche also contains a new definition of “computer”. It’s no longer a laptop or single terminal; it can now include a computer system or network. This means an entire media organisation’s computer network can be captured under the new Bill. Under the legislation, powers have been granted that allow for the network to be monitored, have information taken from it. Particularly chilling is that the network can also be “disrupted”. “Disruption” can include the addition, copying, altering or deletion of data – without informing the media organisation.

The first tranche was passed by the Parliament with some minor acknowledgment of press freedom concerns. The recommendations introduced a public interest test, requiring the Commonwealth Director of Public Prosecutions to consider the “public interest” before prosecuting a disclosure of a special intelligence operation. Defenders of the new counter-terror laws have been quick to point to this as a sign that the laws acknowledge press freedom. But what the DPP reckons is in “the public interest” may well differ from that of journalists, media organisations and, indeed, the public consider it to be.

The legislation also applied the “recklessness” test to disclosures. Even if information is published or broadcast in the public interest, such as the Snowden revelations or raids like Operation Neath, that act of “disclosure” could be considered “reckless” by a prosecutor or a court. And that should cause concern for editors and news producers who have to make the call. Debate around the second tranche of counter- terror laws has centred on the powers to stop “foreign” fighters. But inside the Bill are attempts to extend three sunset clauses beyond their current expiry dates and let them run for a further decade. The clauses relate to the use of control and are attempts to extend three sunset clauses beyond their current expiry dates and let them run for a further decade. The clauses relate to the use of control and preventative detention orders and stop, search and seizure powers relating to terrorism offences (both are due to expire December 2015). A third clause involves ASIO’s powers relating to questioning and detention warrants (due to expire in July 2016).

The second tranche also introduces a new offence of “advocating” terrorism. It is problematical because of the much criticised definition of “terrorism” – the Law Council and others have noted that currently general advocacy falls outside the meaning of “terrorist act”. The second tranche seeks to draw it in, which could constrain free speech and should concern freedom of expression groups.

The second tranche, like its predecessor, also has a crack at unauthorised disclosure of information – this time it’s about reporting delayed notification search warrants – i.e. searches done in secret. These warrants can be delayed for a seemingly endless amount of time at Ministerial discretion and any disclosure by a whistleblower or reporting by a journalist could result in two years jail.

There are also concerns about journalists reporting in conflict zones – the law defines journalists as those who work “in a professional capacity”. By seeking to define journalist, does that mean bloggers, freelancers, authors and their fixers, translators, drivers and security people could be at risk if they go to an area “declared” by the Foreign Minister?

The third tranche of law aims to tie up the loose ends of the surveillance state. Thanks to Snowden and others, we know governments the world over are spying on their citizens by capturing the data generated by communication and IT devices. Earlier this year, the Government was keen to provide extensive new powers under the Telecommunications (Interceptions and Access) Act 1979.

It is abundantly clear that allowing governments to scour through our personal data is not just an outrageous invasion of privacy but a genuine threat to journalists’ relationships with their sources and the information those sources seek to pass on to us.

Allowing governments to share our data with other governments is also frightening.

If our phone and email data is freely available to government and its agencies, how can a whistleblower make contact with a journalist? How can a whistleblower pass on information if a computer network is compromised? How can a journalist read the information, store it and prepare news stories if their computer is being monitored? How can journalists maintain their ethical obligations to maintain a confidential source if every aspect of their digital working life is subject to surveillance by the government?

MEAA has warned about the over-reach of counter- terror laws since our first report into the state of press freedom in 2006. We have catalogued our many concerns every year since then (www.pressfreedom.org.au).

Australia has not seen such a crackdown on freedoms since the Second World War. It’s not just press freedom that is being threatened, but freedom of access to information and freedom of expression. It is being carried out in haste with the support of both major parties, with little public consultation, discussion or debate.

In the space of a few months, laws have been passed that criminalise journalists and journalism and turn the weapons of espionage against us. In return, journalists must now resort to similar tools to encrypt data and protect our sources, their information, and the news stories we are working on.

These laws must be reconsidered and wound back. They are not worthy of a healthy, functioning democracy.

Christopher Warren is MEAA’s federal secretary Mike Dobbie is MEAA Media’s communications manager.