Legislating for the online world

Since it was first commercialised in the 1990’s, the Internet has experienced unprecedented growth. There are over 634 million websites in existence this year, and over 2.4 billion daily users. On top of that, in less than two decades more than 3 billion people around the world have chosen to use various web mailing platforms to send each other private information, or conduct important business dealings, averaging about 180 billion emails dailyWith these sorts of figures, it is understandable that the government seeks to find a way of legislating both for general safety and convenience, and to actively find and stop lawbreakers. The problem that arises is how to do this without impinging on the privacy and freedoms of the law-abiding majority.

This is where the public and various accountability bodies often clash with law-enforcement agencies: when are these agencies allowed to collect private electronic information from people, and why, and how?

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Photo © Matylda Czarnecka, Hack NY. Reproduced under Creative Commons.

One piece of legislation that describes and limits ‘cyber surveillance’ is the Telecommunications (Interceptions and Access) Act 1979. Legislation that supports this act are the Telecommunications Act 1997, and the Surveillance Devices Act 2004.

Originally, this act detailed how telephones and the like could be monitored. This has been broadened until today it covers the interception of all forms of telecommunication. It defines this interception as an offence, unless the person accessing the information has a warrant, or is an authorised member of a government agency.

This lack of oversight is what concerns so many people – who is to say exactly what information the person accesses, or what they do with it, and whether they dispose of it as they are meant to. Such breaches of privacy are at the heart of the debate over cyber surveillance.

But what is cyber surveillance, and what sort of impact does it have on the average Australian? Cyber surveillance refers to the ways in which the virtual dealings and interactions of a person are monitored, whether legally or illicitly.

In recent years it has become the center of a debate between citizens, governments and corporations about the level of privacy they can expect, and the means employed and proportionality of the surveillance in place. The advances that require such debate have created an environment in which it is clear that current cyber security legislation needs amending to properly manage the use of modern communications in the prevention and prosecution of criminal activity and threats to national security.

To acknowledge this, the Australian government has formed a committee  to investigate the current legislation in place that protects our rights, and grants certain powers to various monitoring forces.

This committee has been charged with examining the 1979 act, with reference to recent reports that show it struggles to be effective in light of technological developments, changes in the structure of communication industries, and changing community perceptions and expectation about communication technologies.

An analysis of the act is is perhaps overdue, given that the 2014 Edelman Trust Barometer  shows that trust in governments has dropped the world over. This, combined with new data showing the public’s growing fear about the security of their online data, suggest the public wants more stringent controls on government mandated cyber surveillance.

Katharine Viner, editor-in-chief of the Guardian, says that “thresholds for lawful surveillance are too low”, and that this, coupled with weak oversight measures and a lack of transparency in the process, has caused the public to loose faith in government agencies that engage in cyber surveillance.

Viner also fears that lax restrictions on cyber surveillance will have a negative impact on the democratic process. She fears that journalists and their sources, such as whistle-blowers, may be targeted under this act not because of criminal wrongdoing, but because they wish to share report factually to the public.

To combat this, she suggests news laws should be introduced stipulating “the surveillance of journalists should never be undertaken by investigative agencies of the executive without proper scrutiny by the judiciary in advance, nor without appropriate oversight afterwards by the judiciary or by suitably equipped and independent regulatory agencies”. She also recommends the threshold for warrants to intercept journalists’ communications be higher.

It is with this thought in mind that she calls for stronger reviews of Australia’s intelligence community and enforcement agencies, “to ensure more transparency of interception activities”. Without it, Viner argues cyber surveillance can only grow more intrusive and encompassing, with the potential to “chill activities which in a democratic society journalists legitimately pursue”.

This view is echoed by advocacy organisations such as Electronic Frontiers Australia. A representative of this organisation has argued that any changes or amendments to the act must include strong privacy protections for individuals, as well as “accountability provisions for the government, security, law enforcement, and associated agencies”.

They make note of both the presumption of innocence enshrined in Australian law, and human rights declarations, which specifically mention “freedom from surveillance and arbitrary intrusions into a person’s life”.

Electronic Frontiers says that the current laws, including the Telecommunications (Interception and Access) Act “needs to be reformed so that citizens’ rights, especially the right to privacy, are better protected”, and to keep pace with technological advancements.

 This view is echoed by the Australian Law Council, albeit in a moderated form. The Law Council has said that a reform of the current act must balance the intrusiveness of the interference against operational needs. However, they go on to warn intelligence agencies that “interception of or access to communications will not be proportionate if it is excessive in the circumstances or if the information sought could be reasonably obtained by other means”.

Realistically, you can’t get away from surveillance in the modern age, not without retreating to the outback and cutting off communications with the outside world. While accepting this, the public relies on their governments to ensure this surveillance is done as ethically and non-personally as possible. Social media sites understand this, stripping any data they use of personal identifiers before analysing it.

It is disappointing then that our government is lagging so far behind the rest of the world and even commercial entities in ensuring the rights and dignities of their citizens are being protected.

The Comprehensive Revision of Telecommunications (Interceptions and Access) Act 1979, which tables its first report in August 2014, is a step forward on the part of the federal government. It shows their willingness to both move with the times and support their citizens, while working to improve national security.

But of course, even if surveillance has become just another facet of everyday life that does not mean it is always right. You must decide for yourself whether the monitoring of your every action both online and in the public sphere has gone too far, or is merely another measure to ensure that the attacks of the past do not repeat themselves in new forms.