While this has been a difficult year for the digital rights agenda in Australia, 2016 looks much more promising.
With an election looming in which innovation and ‘tech-savviness’ are likely to be regular talking points, it provides one of the best opportunities for digital rights issues to really break into the mainstream.
Digital rights as mainstream political issues
We’ll be working hard in this election year to ensure digital rights issues – privacy, copyright reform, net neutrality, equity in access and related issues – are given the mainstream attention they deserve.
Protections and limitations on mandatory data retention
With mandatory data retention now a legislative reality, we’re calling for the warrant requirement for access to be extended to the entire population as this is the only effective means to ensure protection for whistle-blowers and other privileged conversations.
We’ll also be fighting the expansion of the list of agencies able to access data – less than two months after a restricted list was introduced, there are already dozens of agencies in the queue trying to regain access.
We’ll also be pushing for the data to be retained to be scaled back to the absolute minimum, and for the retention duration to be reduced, especially for internet data.
The implementation process for this scheme is still a very long way from completion so these issues are far from settled.
Mandatory Data Breach Notification
The introduction of legislation requiring organisations suffering data breaches to notify the Privacy Commissioner has already been introduced into parliament twice.
Attorney-General Brandis committed to introduce it again before the end of 2015 as it was a condition of the support of the Parliamentary Joint Committee on Intelligence & Security for the mandatory data retention legislation. He failed to do that but did manage to get an exposure draft out in the last couple of weeks.
Though imperfect, this legislation is an important safeguard for consumers, especially in the context of a society-wide mandatory data retention scheme and should be passed by the parliament without further delay.
Government control of private networks
Not content with the extremely ill-defined powers available under section 313 of the Telecommunications Act, the government is in danger of another unjustified overreach by seeking even wider powers over privately owned and operated networks, in the name of ‘national security’.
Last month the government released a second exposure draft of its Telecommunications and Other Legislation Amendment Bill 2015 (TSSR), which while it addresses some of the concerns from industry and civil society, still does not provide sufficient clarity on the possible scope of the new powers to demand information or network changes.
From the likelihood of bureaucratic overreach to the potential to hamper competition in a now highly-consolidated industry already struggling with the burden of how to implement the government’s deeply-flawed data retention scheme, there are very serious risks inherent in this legislation. It therefore needs careful, objective review and must include clear limitations on the powers for government to interfere in network design and development.
The last thing an ‘innovation nation’ needs is an ISP sector that is forced down to the lowest common denominator by overzealous regulation.
Stronger oversight of intelligence agencies
As the powers available to intelligence agencies continue to be expanded, it is critical that their activities be subject to more effective oversight and accountability. We’d like to see the Parliamentary Joint Committee on Intelligence and Security given greater powers to examine operational matters of the intelligence agencies, as the equivalent Committee in the UK can, in addition to its current role which is limited to examining legislation.
Earlier this year we were told that legislation allowing rightsholders to seek Federal Court injunctions that would force ISPs to block access to offshore sites ‘facilitating copyright infringement’ was ‘urgent and critical’. Six months after this legislation become law, it remains unused (though it’s already being misused).
The ISP Copyright Code was another ‘urgent and critical’ element in the government’s attempts to prop-up the legacy business models of certain film distributors (including one of the largest donors to both Liberal and Labor parties). Just like every previous attempt, this attempt has fallen at the last critical hurdle of cost, because neither party is willing to subsidise this exercise in futility.
Despite the initial bravado of the Attorney-General, who has since (thankfully) been stripped of responsibility for copyright issues, there appears to be no appetite on the government’s part to risk the significant public backlash that would almost certainly result from any attempt to legislate to break this impasse.
Meanwhile, 2015 has seen not just the single most significant advance in legal digital content delivery in Australian history, it’s also given us irrefutable evidence that Australian consumers are more than willing to pay good money for compelling content, both by dragging themselves away from their Christmas shopping to go the cinema and at home, on an ongoing basis.
Our hope for 2016 then is that sanity will finally prevail and that both the government and established content distributors will focus on providing innovative solutions rather than on pointless attempts to prop up unsustainable legacy business models.
There are some very instructive lessons from the PC gaming industry they could benefit from emulating.
Positive copyright reform
Despite our optimism this time last year, we’re yet to see any meaningful progress on the implementation of a broad flexible fair use exception into Australia’s Copyright Act – the primary recommendation of the November 2013 report on Copyright and the Digital Economy from the Australian Law Reform Commission.
As we pointed out in response to the government’s National Innovation and Science Agenda (and again today in response to the release of proposed updates to the Copyright Act), if the government is actually serious about fostering the creation of innovative digital economy jobs that aren’t forced offshore, positive copyright reform is an urgent and necessary, if not sufficient, reform.
International Trade Agreements
So the Trans-Pacific Partnership (TPP) is finally agreed and the text has been released. Though it’s as bad for digital rights as we’d feared, there’s still no guarantee that it will get through the all-important ratification process in the US unscathed. The public opposition from presumptive Democratic Party nominee Hillary Clinton provides some hope in this regard.
If the TPP does ultimately suffer the fate of the League of Nations, there’s still the even more secret Trade in Services Agreement (TISA) negotiations that represent an equivalent subversion of the power of national parliaments.
In more positive news, we do look forward to 2017 when a just-announced WTO deal – its first in 18 years – should lead to significant drops in prices for imported high-tech goods.
We expect that 2016 will see continued growth in interest in and usage of encryption technologies by all types of users and providers. We believe that providers that include encryption and enhanced privacy protections (such as multi-factor authentication) as core features, rather than as after-thoughts will realise increasing commercial benefits from this approach.
We also hope that law enforcement agencies will cease their absurd assertions that ‘encryption enables terrorism’ as well as the even more absurd suggestions from some politicians that access to VPNs should be restricted. As this excellent piece from the Washington Post last week clearly demonstrates, with no shortage in the availability of revealing data about individuals, encryption is in reality nothing like the hindrance to properly-resourced investigations that is claimed.
In September 2014, the Australian Law Reform Commission detailed what would be required to implement ‘a statutory cause of action for serious invasions of privacy’ (aka a ‘Tort of Privacy’). We’d like to see this given serious consideration in 2016 as we believe it would address some of the gaping holes in current privacy protections in Australia.
As a rule, we don’t like new legislation that inhibits speech, but the potential harm involved in ‘revenge porn’ is so substantial that we accept that carefully-worded legislation may be warranted.
A future-proof National Broadband Network
Another item that’s still around from last year is the NBN. There’s no question that the current form of the NBN is very much the work of now-Prime Minister Turnbull. It remains to be seen whether he will seek to improve the situation now that he’s no longer answerable to the bizarre ideological ludditism of the previous Prime Minister, however this week’s news that NBNCo will pay Telstra to fix the copper network it just bought off them for $11bn, doesn’t bode well.
We’re encouraged to see that Prime Minister Turnbull has taken a step away from his predecessor’s apparent allergy to transparency by recommitting Australia to the Open Government Partnership. EFA is a founding member of the Australian Open Government Partnership Network, a grouping of individuals and civil society organisations formed for the purpose of engaging with government in the ongoing development of Australia’s National Action Plan.
While this is a very welcome development, it remains to be seen if PM Turnbull will also reverse his predecessor’s war of attrition against effective oversight of the Freedom of Information process.
We’d like to see enforceable rights to free expression and privacy for Australians written into law. Ideally, this would take the form of a bill of rights with constitutional status which would bring Australia into line with most other developed countries and would provide much-needed protection against governmental tendencies towards authoritarian overreach, particularly in relation to surveillance powers.
Were such protections to exist, we could be following the example of our friends at Digital Rights Ireland who are again challenging their data retention laws in the courts.