| | |
|
GillianWhiteSecondPaper 5 - 24 Jan 2013 - Main.EbenMoglen
|
| |
| META TOPICPARENT | name="SecondPaper" |
|---|
Mandatory data retention in Australia: will this proposed assault on privacy come to pass? | | | 2. Political and legal responses | |
<
< | The good news is that the consultation and parliamentary committee process may result in data retention being put on the political back-burner. An election is likely to be called around August 2013, and since there is no draft legislation, it is unlikely to be an issue that the minority Labor Government will want to push through just prior to an election. Leaks suggest a number of conservative (Liberal party) parliamentarians oppose the idea. | >
> | The good news is that the consultation and parliamentary committee process may result in data retention being put on the political back-burner. An election is likely to be called around August 2013, and since there is no draft legislation, it is unlikely to be an issue that the minority Labor Government will want to push through just prior to an election. Leaks suggest a number of conservative (Liberal party) parliamentarians oppose the idea. | | | | |
<
< | Interestingly, there are opportunities for unusual coalitions to coalesce against any draft law. The broadly ‘left wing’ [http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=pjcis/nsl2012/subs/sub146.pdf]
[Greens]] party, the GetUp advocacy group (grassroots leftish lobbyists) and lawyers have made their human rights concerns clear. However, it is only in combination with industry’s arguments that the government has not thought through the implications of data retention that this dissent could have real political bite. | >
> | Interestingly, there are opportunities for unusual coalitions to coalesce against any draft law. The broadly ‘left wing’ [http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=pjcis/nsl2012/subs/sub146.pdf][Greens]] party, the GetUp advocacy group (grassroots leftish lobbyists) and lawyers have made their human rights concerns clear. However, it is only in combination with industry’s arguments that the government has not thought through the implications of data retention that this dissent could have real political bite. | | |
Industry’s argument is that data retention will be costly and, if the government doesn’t directly pay, then this will be passed onto the consumer. Perhaps a campaign that your internet costs will increase because the government wants to spy on you could work political wonders? This line could see an unlikely, but potent, coalition between Greens and conservatives, which could be enough to kill the law. | | | The Constitution does protect a limited freedom of political speech. It may be possible to construct an argument that data retention could be invalid as applied to political information. The difficulty is that the constitutional freedom only applies to invalidate laws which impose an “effective burden” on political communication. The High Court has only ever found this standard to be met by laws which prohibit speech: it has not held that laws which are likely to chill speech or which compel speech meet this standard. Even if the regime imposes an effective burden on political communication, the Court has given the government great leeway to burden speech in pursuit of legitimate end and claims that the laws advance national security would carry great weight.
Trying to stop this law being passed in the first place, or self-help through encryption and other technologies, appear to be the best options in an Australian context. | |
>
> |
I think this is a solid effort, clear and coherent. I don't quite
believe some of the political analysis. Complaints about cost in
situations of this kind aren't policy opposition: they're bargaining
positions, backing requests for subsidy or compensation by way of
immunization or concessions on regulation. The telcomms and other
affected businesses are just announcing that they're to be bought
off.
I also don't understand why you consider the actual retention of the
data as anything but inevitable. Either government will listen to
the network and retain all the data for itself, or it will get the
data from everyone else and retain it for itself, or it will force
everyone else to pay for collecting and storing everything in case
government needs it. If the Net allows power access to data, that
data will be taken. Australians will no more avoid that situation
than Chinese, or the inhabitants of Zuckerbergstan. But "self-help"
is not the correct name for the alternative that involves all of us
collaborating to restructure the Net so power doesn't have access to
data.
Your political analysis in both respects seems to me to be
based upon an incomplete mapping of the contemporary power
distribution. Matters are further along than you seem to account
for; the sides have hardened more than you accept, the apparent
disparity of power is more immense than you let on, and the eventual
outcome is therefore both gratifying and ironic, which is how the
politics of liberation should be.
| | | \ No newline at end of file |
|
|
|
|
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
|
|
| | |