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Thursday, 2 October 2014
Page: 7751


Senator LUDLAM (Western Australia) (20:19): This time last week this Senate was debating the passage of the ASIO bill. You know the story by now: a bill substantially expanding the intrusive powers of ASIO was shotgunned through parliament after nearly two years in the making. The crossbenchers in here and in the House put up the best fight we could, but we needed 38 votes on the night and we only had 12. The conversation in the media and online in the aftermath has a quality of betrayal to it. How could a government that was meant to be all about freedom do this to us? How could we have let this happen? Where was the media outrage? Where was the opposition?

These are all good questions. Before I try to answer them, I will quickly review the harm that was done earlier this week. Firstly, there is the small matter of Senator George Brandis's new definition of 'computer'. It is about as coherent as his catastrophically ignorant definition of 'metadata'. For the purposes of a computer access warrant, a 'computer' is now defined to include 'a network or networks'. If you have specialised legal training, you may have spotted the slender loophole here: the definition of 'computer' has been amended to mean 'the whole internet'.

The other thing the bill does is kind of ban national security reporting in this country. Anyone who discloses a new category of investigation—these so-called special intelligence operations—now faces prosecution and jail time. We know why these provisions are there, because the government tells us in the explanatory memorandum which sits alongside the bill. They say:

The necessity for increasing the penalty has become apparent through recent domestic and international incidents involving the unauthorised disclosure of security intelligence-related information.

I am sure Edward Snowden, Julian Assange, Chelsea Manning or any of the other whistleblower who have been sent to the wall for unauthorised disclosure of security intelligence related information would be really interested to hear that. Remember how we wiretapped the President of Indonesia's wife? Remember how, on ASIO's advice, we deported US peace activist Scott Parkin for saying mean things about Halliburton, or the time ASIS kinked the East Timorese cabinet rooms during commercial negotiations over gas concessions? If you do remember these things, chances are you heard about them first from a journalist. If you were sufficiently interested or outraged, you might have shared these things on the internet. Maybe there will be a wave of prosecutions to keep people in line. Just as likely, stories like this will be legalled out of existence before they get anywhere near print or broadcast.

So, we lost. We needed 38 votes. We had 12. Keep that number 38 in mind, because we are going to need it again shortly. In retrospect, we had lost well before the chamber debate started. We needed our collective voices raised much louder before the vote, not after. So, tonight I speak not of regret but of determination—determination that this does not happen to us again, because, as bad as the ASIO bill was, the worst is still to come. Prime Minister Abbott and Attorney-General George Brandis have clearly demonstrated that they have not the faintest clue about the technology they are proposing to regulate, but they are pressing ahead nonetheless with a two-year mandatory data retention regime for every man, woman and child and every device in this country.

You may reasonably ask, 'Who is this metadata, and why should I care?' Anyone who tells you that it is like an envelope either does not understand what they are talking about or is trying to deliberately impede your understanding. Metadata is not like an envelope; it is your precise location everywhere you take your mobile phone. It is your entire social network. It is everyone you know and everyone they know. It is whether you are partial to BitTorrent or not. It is your whole digital life.

Let's make it personal: you may not have heard of Mr Malte Spitz, but metadata has certainly heard of him. Google him, or, better yet, follow a link to him. Mr Spitz subpoenaed his phone company for six months of his own metadata and threw it down on a Google Map. You can watch him swarm around the landscape in fast-forward—making calls, catching trains, living his life. That mobile phones can function as intensely fine-grained tracking devices is one reason former CIA and NSA director Michael Hayden cheerfully observed, 'We kill people based on metadata'.

That brings us to the here and now. The next time this chamber sits, which is 27 October this year, Senator George Brandis proposes to introduce a bill for mandatory retention of metadata for two years. This will create vast new data pools so that everyone from ASIO and the police to Centrelink, local councils, the RSPCA, the Victorian Taxi Directorate can rewind your life, map your entire social network and follow you around under a digital microscope. It is going to cost a fortune. Estimates by iiNet across the whole industry start at $600 million and go up from there. Every one of us will have to pay for that, either through our taxes or through increased data charges that the phone and internet companies will be forced to charge.

Now, you might be asking at this point, 'Look, I have nothing to hide, so, what do I have to fear from high-resolution saturation surveillance from hundreds of different government agencies?' To be honest, I am still bewildered that this still comes up as a question at all. But consider the following thought experiment. Imagine a guy whose name you do not know, who you have never met, who silently follows you around—just here, just over your shoulder—listening to your conversations. He was there yesterday, he was there all day today, he will be there all day again tomorrow. He makes quiet little notes of everyone you meet, every conversation you have, what you are wearing and anything you exchange, no matter how intimate the contact. He follows you every minute of the day, everywhere you take your phone. He installs sensors in every room of your house, and there is the abolition of curtains and front door locks—total transparency, all the time. None of what gets recorded will be content, you understand; it's just metadata—millions of little envelopes. It is hardly worth bothering to apply for a warrant if it is just these envelopes. You would not stand being followed around by a creeper like that in real life, so why does Senator Brandis think it is okay to force the telecommunications industry to do that to us online?

When we reconvene at the end of October, this parliament is going to need an opposition. It is going to need 38 votes, and we have less than three weeks to find them. The Greens have been fighting against this arch stupidity for years, so that is 10 votes. You will have seen that a number of crossbenchers, who understood how serious this stuff is during the ASIO debate, voted against it, so we can account for maybe another three votes. That means we are short 25. That happens to be exactly the number of Labor Party senators who were curled up in a small-target foetal position last Thursday night when the ASIO bill was rammed through.

It is up to us all to prevent a repeat of that humiliating performance. Tonight I have a message for the Australian Labor Party. We are not going to let you sit this one out. Get off the fence and start behaving like a party of opposition with a century-long tradition of social justice and solidarity. Seriously, if any of you are listening right now, are you going to stand with Senator George Brandis when this comes to a vote, or will you be standing with everybody else?

I address my final thoughts to you, internets. We are going to need to use the net in defence of itself and unlock—maybe even unhinge—the creative potential of the most powerful communications medium in human history. Tonight I announce that we are offering a small reward for the most creative, original—downright viral—contribution to the campaign, something that in the short time we have left to bring this parliament to its senses is so hilariously in people's faces that it cannot be denied. For the next few weeks, #StopDataRetention needs to be ubiquitous, the creative equivalent of a Distributed Denial of Stupidity attack, targeted at people who will otherwise wander in here at the last minute and vote for a bill they have not even read.

Gamers, I am looking at you. Artists, musicians, hackers, geeks, this is your internet. You have to defend it. If you can get your crazy meme on TV, into the paper or onto the streets, so much the better. It is time for a period of sustained jimmy rustling the likes of which we have not seen since we killed the internet filter. The creator of the most widely seen, most effective, unavoidably kick-ass meme will be flown at gargantuan expense to Parliament House, Canberra, by me, and I will buy you and a friend dinner in the Parliament House dining room—which will be weird, but also kind of fun. That is how serious I am about this. A small panel will judge the winner in the week of October when this Senate next reconvenes. Play the issue, not the man. Do not do anything illegal or stupid. No trolls will be fed in the making of this movement. Internet, your objective is to find 38 votes to nail this data retention idea once and for all. We have less than three weeks. Please help us to find them.