Recently, we released our Election 2016 scorecard. We were really pleased to see a lot of substantive and thoughtful replies from the smaller parties. As in 2013, Pirate Party Australia and the Australian Greens have scored full marks. For the first time this year, the Science Party and the Liberal Democrats have also scored full marks. The Glenn Lazarus team scored very close to full marks, but was marked down slightly for supporting site-blocking for copyright enforcement.
EFA commends this trend toward better protection of digital rights from the smaller parties. Digital rights are human rights, and as more of our daily experience becomes virtual, robust and enthusiastic protection of our digital rights is vital for a free, open and functioning democracy. As an organisation made up of citizens, and as an organisation advocating for citizens and full digital citizenship, EFA is at once encouraged by the enthusiasm of the smaller parties for digital rights, and concerned about the policy platforms and recent legislative history of both the Liberal and Labor parties. We do want to acknowledge, however, that we were pleased that the Liberal party did complete our questionnaire, showing at least some interest in digital rights.
With the election now only days away, we want to remind voters that digital rights are under threat in Australia and throughout the world, and urge them to keep digital rights in mind at the ballot box. To that end, we wanted to provide you with a more thorough examination of what we mean when we say “digital rights”, as well as the policy platforms of some of the parties who will appear on your ballot on Saturday.
Surveillance is becoming endemic to the online experience, and while polls consistently shows Australians are concerned about their privacy online, thanks to the silence of the major parties, the issue is yet to gain traction as part of the political debate.
We asked the parties specifically for their positions on data retention: who could access the data, how long the data should be held, and in which circumstances. All respondents, with the glaring exception of the Liberal and Labor parties, put forward policy positions we can endorse, and which prioritise the privacy of users. As the Science Party told us, “[t]he extensive list of offices already seeking access for reasons that have nothing to do with national security shows the potential for misuse”. Furthermore, as the Greens noted, “[n]umerous international examples, most prominently in the EU demonstrate that these schemes have no measurable impact on crime clearance rates.”
It is worth noting, however, that we have given the Labor party a slightly better score on surveillance than the Liberals: although both voted for data retention, Labor did push hard for a number of important improvements to the legislation, such as the inclusion of a warrant requirement for access to journalists' data and better reporting. They also passed a motion at their most recent National Conference to review this legislation if they form the next government. While these are admittedly fairly minor factors, we felt they warranted a slightly better score.
In 2014, the then Human Rights Commissioner, Tim Wilson, raised concerns about the “chilling effect on free speech [and on] the information we choose to impart” of data retention laws, which is a concern shared by EFA. Broad-spectrum surveillance of users who are not even suspected of committing a crime is a serious threat to the exercise of free speech, and threatens to curtail a robust and vibrant public discourse around policy.
It is the position of EFA that strong encryption technology is a critical enabler of both commerce and communications, and that it forms part of the foundation on which a modern, agile economy may be built. EFA has watched with alarm as, in Australia and around the world, strong encryption has come under legislative attack. Recently, we released an open letter calling for the Liberal and Labor parties to endorse the support for strong encryption advanced in a letter received from the Department of Prime Minister and Cabinet on behalf of the Prime Minister in February.
Again, of the nine parties we scored, only Liberal and Labor failed to receive full marks.
3. Copyright Reform
In 2013 the Australian Law Reform Commission (ALRC) recommended that Australia adopt a number of reforms to modernise the Copyright Act, particularly a broadening of the currently limited fair dealing exceptions to a much broader, flexible fair use exception, in line with US copyright law.
In December 2015, the Government released draft legislation which included reforms which address a number of key issues (such as extending the Safe Harbour scheme and facilitating the implementation of the Marrakesh Treaty) but which fall well short of the introduction of a broad, flexible fair use exception.
In April 2016 the Productivity Commission issued a draft report which supported the ALRC’s recommendation for Australia to adopt a broad, flexible fair use exception.
We rated parties based on support for the (limited) reform proposals put forward by the government, and asking if they supported a flexible fair use exception. Despite a little bit of confusion on Twitter, the Greens, as well as the Pirate Party, the Sex Party, the Science Party, the Liberal Democrats and the Glenn Lazarus Team all gave answers, or have standing policy, we can endorse. We didn’t have enough information to give the Nick Xenophon Team a score. Once again, however, the Liberal and Labor parties failed to score full marks.
Although neither the Liberal nor Labor parties have policies we can endorse, it is worth noting that the Liberal party has indicated that they are willing to consider copyright reform in light of the Productivity Commission report.
4. Copyright Enforcement
In relation to copyright enforcement, we looked at parties’ support of site-blocking in the case of copyright infringement, as well as whether or not they supported ISPs being required to serve notice on those of their customers who are alleged to have infringed copyright.
We were disappointed to note that the Glenn Lazarus team, while they did support copyright reform, and did not support ISPs being required to serve notice on their customers, did support site-blocking. This was the only position of the Glenn Lazarus team we could not endorse, and is the reason the Glenn Lazarus Team did not receive full marks. As with copyright reform, we did not have enough information to score the Nick Xenophon team, one way or another.
Otherwise, all parties, with the exception of Liberal and Labor, received full marks for their positions on copyright enforcement.
In terms of censorship, we looked at support for mandatory internet filtering, although, as above, we believe that widespread surveillance also has a chilling effect on speech which is its own type of censorship.
Censorship was a clean sweep for the smaller parties, with every party, apart from Liberal and Labor, scoring full marks. Liberal and Labor, however, scored the lowest mark possible.
If you got sick of reading “except for the Liberal and Labor parties”, rest assured, I also got pretty tired of typing it! We are extremely disappointed with both parties’ approach to digital rights. From data retention to copyright infringement, both the government and the opposition are out of step with evolving community norms, apparently unconcerned with the privacy of their citizenry, and failing to provide much-needed leadership on digital rights issues. This election, EFA can’t endorse either party as being even adequate on digital rights.
Authorised by J. Lawrence, 31 Arden Street, North Melbourne VIC 3051