by Nic Suzor

Today I attended a briefing session on ACTA (Anti-Counterfeiting Trade Agreement ) hosted by the Australian Department of Foreign Affairs and Trade (DFAT). I felt it was a good meeting, and I really got the sense that DFAT were interested in public participation. There was a good deal of frustration on both sides of the fence – participants expressed serious concerns about the lack of transparency in the negotiating process, and DFAT consistently repeated that they were bound by confidentiality agreements and could not divulge details of the draft text of the agreement. Participants in the Tokyo round of negotiations agreed that the full text of the agreement will only be made available after negotiations have been concluded and the text finalised. Understandably, there were a number of members of the audience who were hesitant to accept any of DFAT’s assurances as to the content of the agreement without access to the negotiation documents.

Overall, whilst I think that the process is far too secretive, DFAT appear to have gone a long way to make available what they can, and they seem genuinely interested in hearing from interested parties in Australia. Unfortunately, input will be limited (blind) until negotiations are complete and the text finalised, but DFAT assures us that they are considering the issues thoroughly and there will be genuine opportunity to debate whether or not to sign at the end of the process.

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Electronic Frontiers Australia (EFA) today expressed its concern about the lack of transparency in the development of the Anti-Counterfeiting Trade Agreement (ACTA). EFA is also troubled by the little information that is available about the substantive content of the proposed plurilateral agreement, which threatens to dramatically alter the copyright balance in favour of corporate rights owners, impose significant liability on Internet Service Providers, and require the institution of invasive surveillance and filtering.

EFA Chair Dale Clapperton slammed the negotiation process. “Negotiations for ACTA have been conducted secretly. The public have a right to be involved in the development of measures which will significantly alter their legal rights. So far, only copyright owners have been involved in this process, and the outcome will undoubtedly favour their interests over the legitimate interests of users and reusers of copyright material.”

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Electronic Frontiers Australia (EFA) today said that the latest in a long series of embarrassing data security breaches proves that the Commonwealth government can not be trusted to maintain the security of the proposed Health Services Access Card database.

“The government has dozens of databases containing sensitive and personal information about millions of every-day Australians,” said EFA Chair Dale Clapperton. “Yet the government is unable to prevent its own employees from illegally snooping through personal records that they have no business accessing.”

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EFA’s submission to the Department of Human Services in relation to the Exposure Draft of the Human Services (Enhanced Service Delivery) Bill 2007 pointed out problems with the new proposed legislation, including privacy issues and over-reliance on questionable biometric technology for fraud prevention.

See EFA Media Release

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EFA has been actively involved during the last four years in efforts by the Parliament to deal with the vexed issue of interception of stored communications (e.g. email), and we have fought to ensure that there is an appropriate balance between protecting the privacy of telecommunications users and meeting legitimate needs for access by security and law enforcement agencies.

The 2007 Bill currently before Parliament includes major new powers for security and law enforcement agencies and significantly changes the existing “telecommunications data” access framework. It contains provisions that were not recommended, nor even mentioned, in the Blunn Report, and some provisions that are contrary to recommendations in the Blunn Report. Furthermore there are a number of technical problems with the drafting of the Bill that would create severe practical problems if implemented. Accordingly, EFA has recommended that this Bill be rejected by the Parliament. A Senate Committee is inquiring into the Bill.

See: EFA’s submission to the Inquiry

EFA has sent a submission in support of the Australian Communications and Media Authority’s proposed Integrated Public Number Database Scheme which is being established following the enactment of the Telecommunications Amendment (Integrated Public Number Database) Bill 2006.

EFA’s submission to the Attorney-General’s Department expresses serious concerns about the Exposure Draft of Telecommunications (Interception and Access) Amendment Bill 2007. The draft contains new powers enabling law enforcement agencies to access telecommunications data without a warrant, which were not recommended in the Blunn Review Report, and other provisions that are contrary to some recommendations in the Blunn Report. EFA would be unable to support passage of the proposed legislation in its current form.

See EFA’s submission to the A-G’s Dept.

The exposure draft of an Access Card Bill has exacerbated EFA’s opposition to the system. The broad powers to be granted to the Minister and DHS officers facilitates function creep, negates implied promises about limits on storage of information in the national ID database, and possibly even enables the collection of fingerprints, etc. Proposed offences are seriously deficient: some are unlikely to be enforced due to the nature of criminal law, some would criminalise innocuous activity, and some show DHS has no confidence in the technological security of the card system architecture and enable individuals to be prosecuted for events beyond their control.

See EFA’s submission on the Access Card Exposure Draft Bill.

EFA sent a submission to the Australian Law Reform Commission in response to ALRC Issues Paper 31 Review of Privacy. EFA considers the Privacy Act 1988 (Cth) is in need of major overhaul. It is inadquate to protect the privacy of Australians in the 21st century.

See EFA’s submission to the ALRC.

The Telecommunications Amendment (Integrated Public Number Database) Bill 2006 was introduced into Federal Parliament. This Bill will improve privacy protection for telephone subscriber information stored in the IPND and will implement a situation substantially similar to that advocated in EFA’s July 2005 submission to the ACMA concerning data sourced from the IPND. Unfortunately however the Government has not addressed the related issue of Sensis’s collection of data directly from telephone service providers, not the IPND. Hence the Bill will not result in adequate regulation, nor result in a level playing field applicable to public directory producers. EFA considers Sensis should be required to comply with the same rules as any other public directory producer.

EFA sent a submission in response to the ACMA’s Discussion Paper on an Industry Standard for the Making of Telemarketing Calls. The ACMA is required by the Do Not Call Register Act 2006 to develop a national telemarketing standard to provide consumers with greater certainty regarding the minimum level of behaviour they can expect from unsolicited telemarketing, opinion polling and survey calls (including from entitities exempt from compliance with the Do Not Call Register).

See EFA’s submission to the ACMA and EFA’s Use of Telecommunications Customer Information page.

EFA is deeply concerned by the planned rollout of a so-called Access Card smart card linked to a centralised database containing identification, and other, information about almost every adult Australian and Australian residents. The proposal is flawed because it produces a “honeypot effect” - a highly attractive and richly rewarding single target for criminals engaged in identity theft.

See EFA’s submission to the DHS Access Card Consumer and Privacy Taskforce and EFA’s Access Card page.

The Do Not Call Register Act 2006 has now been enacted by Parliament. The Register is expected to commence in the first half of 2007.
On 28 Nov 2005, EFA made a submission in response to the Discussion Paper titled Introduction of an Australian Do Not Call Register issued by the Department of Communications, Information Technology and the Arts. EFA supports the establishment of a Do Not Call Register. Additional measures are also necessary, including regulations governing the use of automated calling systems and minimum national contact standards.