Draft – Sheilding ASIO: Above the law, Beyond the media. Sacrificing Freedom for Security

Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.
– Benjamin Franklin, Pennsylvania Assembly, 11 Nov. 1755

Freedom of speech is a principal pillar of a free government; when this support is taken away, the constitution of a free society is dissolved, and tyranny is erected on its ruins. Republics and limited monarchies derive their strength and vigor from a popular examination into the action of the magistrates
– Benjamin Franklin, Pennsylvania Gazette, 17 Nov. 1737.

Chelsea Manning, Edward Snowden, Wikileaks and Julian Assange, PIPA/SOPA, Aaron Swartz; They have all raised our collective network literacy, and driven a wedge between governments and the notion of freedom of information and privacy.

Under the banner of national security, freedoms of press, universal rights to freedom, and freedom of information are being restricted. Here in Australia we have seen this with new National Security laws. The move is part of a global move to combat terrorism in the digital age, and has been criticized and dubbed by some opposed political figures as part of a growing culture of secrecy (a term taken from A Culture of Secrecy. The Government Versus the People’s Right to Know. Lawrence, University of Kansas Press, 1998) in our Government, and reminiscent of its attempts to restrict information to the media around border control and immigration operations [5][6].

The Australian Federal Senate recently passed controversial laws relating to Australian intelligence operations.  The National Security Legislation Amendment Bill (No. 1) 2014, passed with the support of the Coalition, Labor, the Palmer United Party and some other crossbench senators.

The new laws cover four main areas:

  • greater protection for intelligence officers who commit crimes while conducting operations;
  • cracking down on the leaking and publication of information about secret operations;
  • expanding ASIO’s access to computer networks;
  • making it easier for Australia’s spying agencies to work together.

Here’s the details – and an explanation of why they have legal experts, digital rights and media advocates concerned.

1. Australian Security Intelligence Organisation officers will now have greater immunity from prosecution if they commit a crime in the course of a “special intelligence operation”.

Authorised ASIO officers will decide which operations are classed as “special intelligence operations” and there are no limits on how many operations can be designated as such. This grants immunity on a broad and essentially unrestricted scale. The laws state only that ASIO officers must not be engaged in conduct that causes death or serious injury, involves a sexual offence against any person or the significant loss of or damage to property. After concerns were raised in the Senate about ASIO officers using torture, the government inserted a clause clarifying that torture is not permitted under these laws. However, the term ‘torture’, as witnessed in U.S. cases of special intelligence operations, can be side stepped if methods are defined as ‘enhanced interrogation’. So this part of the legislation places Government agents above the law in certain circumstances, this is a breach for many of the principles of responsible and accountable governance.

2. The laws increase the penalties for intelligence officers, or contractors, who share information about secret operations. ASIO agents who remove or copy intelligence material without authorisation will now face up to three years’ jail. If they hand the information to a third party – for example a journalist – they will face 10 years in jail, up from two currently.

Furthermore, anyone who discloses information about a “special intelligence operation” faces five years in jail. If the disclosure endangers anyone’s health or safety – or the effective conduct of an operation – then they face 10 years in jail.

According to Attorney-General George Brandis, these laws are aimed at intelligence officers – not the media, however it is for the judiciary arm of government to determine their application, and the laws leave open the possibility that journalists could be jailed for publishing reports based on leaked information from intelligence agencies.

The union representing journalists, the Media, Entertainment and Arts Alliance (MEAA), made a submission to the Senate stating their concerns. These concerns were mirrored and the submission referred to by Senator Scott Ludlam in a question to Senator Brandis in the committee stage of the bills consideration, the concern was journalists may become charged for committing a criminal offence for publishing stories such as the alleged tapping of phones in Indonesia by intelligence agencies and Edward Snowden-style revelations about intelligence gathering. Senator Ludlam also noted a submissions from the Guardian Newspaper and The Human Rights Commission that expressed concern that the bill restricted Freedom of Expression and Freedom of the Press.

Senator Brandis refused to comment on which stories the media published that these laws would apply to, leaving the media very much in the dark on how these laws might be applied. There are fears there will be a “chilling effect” (MEAA) on reporting about national security operations.

Also, anyone who exposes an undercover ASIO operative could face up to 10 years in jail – up from one year following an amendment by the Palmer United Party.

3. The laws give ASIO officers greater power to access computers, computer systems and computer networks. There is no limit on the number of computers that can be accessed if a warrant is issued. Legal experts have warned that this power is extremely broad and could theoretically allow ASIO to monitor the entire internet on one warrant. (Professor George Williams, UNSW, 2014)

Internet rights group Electronic Frontiers Australia is concerned that the privacy of Australians with no connection to terrorism could be affected.

4. The laws also allow Australia’s domestic surveillance agency, ASIO, to work more closely with the Australian Security Intelligence Service, which has traditionally handled overseas intelligence operations. ASIS will now have greater powers to produce intelligence on Australian citizens. 

A second tranche of new national security legislation, currently working its way through Parliament, will make it a criminal offence, punishable by up to five years in jail, to incite terrorism and create new restrictions on jihadi fighters who return to Australia. The Foreign Affairs Minister will also be able to declare countries such as Syria and Iraq as “no-go zones”. Anyone returning from a proscribed area would be compelled to prove they had not been engaging in terror-related activity. Effectively reversing the principles of burden of proof and presumption of innocence seen in our legal systems.

A third tranche of legislation, yet to be introduced, is expected to legislate that internet service providers must store users’ billing information and other data for two years.

Government intelligence agencies have largely operated covertly and outside of public scrutiny, save bar a few scandals, but emerging network spaces are shining light on these operations and disseminating information about them widely. In response Government now demands of its intelligence agencies, its military, its policy makers and advisers, and its constituents, a set of Network Literacies that amounts to an ability to navigate, govern and manipulate vast information networks, literacies that I would suggest many policy makers simply do not possess to a level to make informed decisions on policy, and that many citizens would not possess to a level sufficient to understand the breadth of such policy.

So far these policies appear to do a lot to place the actions of ASIO and ASIS out of the reach of public scrutiny and above the reach of the law, they appear to breach fundamental universal freedoms and fail to prove they actually directly address any dangers of terrorism. These laws take an approach to the issues that focuses on the construct of National Security, with it bringing an increase in the coercive and surveillance powers of the state, opponents of this approach, including Senator Ludlam propose we take a Community Safety approach focusing on prevention through deescalation of potential threats.

The Prime Minister’s stance appears to be that Security is more important than some universal freedoms. “Regrettably for some time to come, the delicate balance between freedom and security may have to shift,” he said. “There may be more restrictions on some, so that there can be more protection for others.” Who the some are, and who the others are, is unclassified, how removing the universal rights of some will protect the rights of others is unclear, but such a removal certainly suggests a view of these rights as limited rather than universal to begin with.

Consider the growth of surveillance and coercive powers since 9/11 and the rolling back of freedoms that has occurred in the UK, US, and Australia, in that 13 years. For example in 2010, The Washington Post revealed “Every day, collection systems at the National Security Agency intercept and store 1.7 billion e-mails, phone calls and other types of communications.”  Now, it is telling of perhaps the fallacy of the effectiveness of this expansion of state surveillance approach, or the fallacy in the information we are provided by the canonical sources, that we are told despite this expansive growth of coercive powers, we are still at the highest level of threat we have ever faced. [1] [2] [3] [4]

[1] “ASIO set to raise terror warning to its highest level yet” The Australian, Sept 10, 2014.

[2] “Britain facing ‘greatest terrorist threat’ in history” The Telegraph, Oct 02, 2014.

[3] “Terror Risk High: Tony Abbott announces increase in National Terror Public Alert System” Sydney Morning Herald, Sept 12, 2014

[4] “Terrorism threat: Australian alert level raised to high; terrorist attack likely but not imminent” ABC News, Sept 13, 2014

[5] “Immigration Department’s ‘creeping culture of secrecy’ alarms Labor senator” The Guardian, June 19, 2014

[6] “Coalition says media outlets will not be told when illegal boats arrive until weekly briefings” Sunday Telegraph, Sept 21, 2013.

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