ON 24 September 2005 almost 92,000 AFL fans packed the Melbourne Cricket Ground for the Grand Final between the Sydney Swans and the West Coast Eagles.
That day was celebrated by Swans supporters as their first Grand Final win since 1933; authorities knew it was almost the day of Australia’s greatest terrorist atrocity.
It is public knowledge now that a planned terrorist attack on the MCG was averted. Central to this and achieving successful convictions was the targeted retention of metadata over 16 months by the Victorian Police, the Australian Security Intelligence Organisation (ASIO) and the Australian Federal Police (AFP) as part of Operation Pendennis.
Between November 2005 and March 2006, 13 men were arrested in Melbourne, charged with a variety of terrorism offences under the Criminal Code. Of these men, eight were found guilty of crimes centred on a plan to commit an act of terrorism at the MCG and the nearby Crown Casino.
Metadata was also used in 2009 to detect Australia’s second largest terrorist plot: an attack on the Holsworthy Army base in Sydney.
Beyond terrorism, telecommunications data is used in almost every investigation of serious criminal activity, such as murder, rape, kidnapping and child sex offences.
It seems logical to ensure that authorities continue to have access to information that can help keep our community safe. Current security legislation fails to ensure such access.
With digital technology — and the enabling data stream — being central to just about every aspect of our modern lives, the cost of storing metadata is increasing. To remain competitive, companies will understandably look to reduce costs in any area they can.
This will include reducing or eliminating the practice of storing metadata, because currently there is no legislated requirement for it to be kept. The Government is moving to address this.
Despite all the hype, the new legislation around data retention is just requiring a common approach to a practice that is already supported by most telecommunications providers who collect and store metadata for their commercial purposes.
The Government is not seeking the retention of any new information; the changes will simply mandate that this data is kept for a defined period of time.
While metadata can be and has been accessed by security and law enforcement agencies, the proposed laws will enable a more consistent approach whereby telecommunications providers will continue to work cooperatively with agencies, providing access to data already retained for business purposes during the investigation of serious crime and security threats.
Given the risk of misinformation in this area, and ambiguity over use of the term metadata, it is important to be clear about what telecommunications data the security and law enforcement agencies would like the telecommunications providers to retain.
Consistent with the current cooperative arrangements, mandatory data retention would ensure that the limited information currently accessed to support criminal and security investigations would continue to be available, such as telephone numbers, email addresses and originating IP addresses.
Importantly, this does not include the content of any emails, text messages, or attachments to emails, or web browsing history.
While metadata for these purposes may include the status of chat sites and chat aliases or identifiers, it does not include the substance of the communication or web camera transmissions.
As has always been the case, accessing the content of any personal communications, including examining the content of web-surfing sessions, and indeed the destination IP addresses that could point to visited websites, will require a warrant.
Updates to associated security legislation also address the changes in digital technology since the current laws were enacted. Smartphones, tablets and wireless connections were not envisaged when the current laws were drafted and yet these networks now form the mainstay of much of our online activity — including those who intend to harm our society.
While the changes in legislation are relatively minor, nevertheless, any laws which affect government power must be balanced with proper oversight. This oversight is there to protect the individual’s right to privacy and to ensure that only information which is demonstrably necessary is accessed by appropriately approved personnel.
The Coalition Government will also increase the resources of the Independent Office of the Inspector-General of Intelligence and Security, the office holder charged with reviewing the activities of the six intelligence agencies which make up the Australian Intelligence Community. The independent Inspector-General, will ensure all intelligence agencies act legally and with propriety while monitoring compliance with ministerial guidelines and respect for human rights, including specific oversight of compliance with any data retention laws.
Further, the decision to retain the role of the Independent National Security Legislation Monitor will ensure ongoing review of the operation, effectiveness and implications of Australia’s national security legislation.
We are great supporters of our police men and women and cheer our security services when they succeed in foiling the activities of individuals and groups that would seek to harm us, our families and our communities.
We are right to ask questions and to seek safeguards, but we should never let unreasonable fears prevent these agencies from being given the tools they need to undertake the job we expect them to do for us every day of the year.
David Fawcett is a Senator for South Australia in the Australian Parliament.