Civil liberties groups are calling for sweeping changes to limit warrantless phone and email data seizures by Australian enforcement and intelligence agencies.
The New South Wales Council for Civil Liberties and Electronic Frontiers Australia have joined the Australian Greens’ call for a review of intelligence-gathering operations after new revelations by Guardian Australia that the Defence Signals Directorate discussed sharing the data of ordinary Australians with other countries.
The human rights lawyer Geoffrey Robertson QC has argued that the revelations would be in breach of Australian law, a claim rejected by the prime minister, Tony Abbott.
“The council believes the government should establish an inquiry into our intelligence collection and sharing operations since at least 2006 in light of the Snowden revelations,” the secretary of the NSW Council for Civil Liberties, Lesley Lynch, told Guardian Australia.
“This would be in the best interests of community confidence and the good standing of our intelligence agencies.
“The community ought to know – in broad terms – the extent and nature of surveillance programs, including what the government collects directly and what it accepts from foreign intelligence agencies and telecommunications providers.”
Dr Sean Rintel, the chair of Electronic Frontiers Australia, said the revelations appeared to show “not only a disregard for Australians' privacy but, far worse, a disregard for the presumption of innocence and accompanying procedures of legal and parliamentary oversight that are supposed to be the hallmarks of democratic societies.
“Today, more than ever, Australians deserve, and must demand, an inquiry into surveillance oversight protections.”
The justification used for providing less protection for metadata is that the information is “non-content” data. While information can be revealed about who a person has emailed and what the subject line was, the contents of an email would usually require a warrant.
Lynch said the distinction was “cynical” and “profoundly misleading”.
“As our intelligence agencies well know, the massive reliance on electronic media for all kinds of communications – intimate, highly private, social, medical, business, religious etc – and the staggering technical capacity to capture and analyse all interactions readily delivers a full life profile of individuals,” she said.
“Unwarranted collection of our meta communications data is a gross intrusion into privacy and eventually liberty.”
The Australian Signals Directorate, which exists primarily to gather foreign intelligence, cannot target Australian citizens without the authorisation of the minister for defence. The organisation presumes people outside Australia are not Australians unless there is evidence to the contrary.
The vice-chair of the Australian Privacy Foundation, David Vaile, has called into question the effectiveness of these safeguards because the authorisations are issued by the defence minister and not a judge.
“The concept of a ministerial warrant poses a number of problems because it does not provide any form of judicial oversight,” Vaile said.
“Most people would think a warrant would imply there's been some judicial consideration that is independent. Where you have someone who's both a politician and one of the leaders of the executive doing something that is clearly an authorisation that is problematic.
“There's no constitutional right to protections in Australia against search and seizure and so a lot of searches in relation to metadata are happening without a warrant.”
In the 2012-13 inspector general of intelligence and security report the inspector general found nine instances where there were concerns raised about the directorate targeting Australians.
“On two occasions I considered that the original basis for determining nationality was not sound, and on three further occasions I suggested further action be taken by DSD and conducted follow-up inspections to ensure remedial action taken by DSD was appropriate,” the inspector general wrote.
“On four occasions I found there was an excessive delay in notifying other ISA agencies or other DSD teams that a person has been identified as an Australian person.”
The inspector general considered the measures taken were “generally appropriate” and that they had addressed the issues identified.
The report also found “several administrative or procedural issues where it was identified improvements could be made” in regards to the process for obtaining authorisations. The inspector general found that by the end of the reporting period the organisation had improved its administrative arrangements.
There are no recommendations in relation to Australia’s intelligence sharing with the other 5-Eyes countries. Canada’s 2013 annual report of the security intelligence review committee recommended a more extended regime of checks and balances.
