Category: Transparency (page 1 of 2)

ASIC and s313

Unless you’ve been living under a rock, you’ve probably heard of ASIC’s handy work in accidentally(!) blocking 250,000 websites under s313 of the Telecommunications Act and the good work of pirate activists in extracting information about other incidents of s313 blocking.

I applied at about the same time for similar information but extended my request to include some of the policy or protocol statements regarding the agency’s use of the powers s313 granted it, as well as minutes or records of any meetings.

a) Internal policy or protocol statements, guides or memoranda regarding the use of s313 of the Telecommunications Act 1997 for the purposes of requesting from Internet Service Providers, Carriers or Carriage Service Providers, the blocking, filtering or other interference with access to websites determined by ASIC, or by a judicial authority on application from ASIC, as warranting such action, produced or currently valid for the period 12 months prior to this request.

b) In particular, documents, reports, memoranda or internal communication relating specifically to the request by ASIC to Internet Service Providers, Carriers or Carriage Service Providers to block the websites mentioned in the ASIC Media Release 13061MR[1] entitled ‘ASIC warns consumers about Global Capital Wealth’.

c) Memoranda, records or minutes of any meeting or correspondence, between the Department of Broadband, Communications and the Digital Economy, the Attorney General’s Department or any other Ministry or Government agency for the purposes of discussing the use of s313 of the Telecommunications Act 1997, within the last 12 months of the date of this request, as discussed by Ms Sachi Wimmer, First Assistant Secretary, Cyber Policy and Homeland Security Division in Senate Estimates, in the Finance and Public Administration Legislation Committee on Monday, 27 May 2013, at page 82.[2]

I received many documents [PDF] already released to Brendan Molloy, with the addition of a slide show from the FSE Forum, 18 December 2012 on s313 blocking, as well as some scans of articles from Delimiter and the SMH.

Also the breadth of departments and agencies that have been debriefed on s313 is revealed with the following participating in the AGD/DBCDE convened conference:

  • Department of Immigration and Citizenship (IMMI)
  • Attorney Generals Department (AGD)
  • Australian Communications and Media Authority (ACMA)
  • Australian Competition and Consumer Commission (ACCC)
  • Australian Taxation Office (ATO)
  • Australian Crime Commission (ACC)
  • Australian Federal Police (AFP)
  • Department of Broadband, Communications and the Digital Economy (DBDCE)
  • Australian Customs and Border Protection Service
  • Australian Human Rights Commission (AHRC)
  • Australian Security Intelligence Organisation (ASIO)

Quite a few documents were refused access, because they’d prejudice the operation of ASIC if they were to be released, or would compromise the investigative/detective/preventative operations of ASIC if they were to be released. That will be appealed in due course.

What is perhaps more troubling is the documents that weren’t uncovered, because they didn’t exist. Policy or protocol statements. Government agencies have the authority and power vested in them by virtue of s313 to block access to huge slabs of the Internet – yet have no guidance or policy statements on how that power should be executed. Troubling.

AFP Denies Access to Social Media Surveillance Documents

 

A little while ago (5 months ago) I made a request under the Freedom of Information Act for the following documents.

(a) Documents, reports, memoranda or policy statements not already made publicly available, regarding the use of social media or social networking sites in formal police inquiries, surveillance and investigation.

(b) Documents not already made publicly available detailing any formal or informal co-operative arrangements between law enforcement agencies and any such social networking sites, detailing prices and/or procedures for such agencies seeking access to information or details regarding subscribers to those services.

It is without a doubt that there is a public interest and democratic imperative that such information be released. Internet users have a right to understand and be made aware of what information is being collected, under what circumstances and under what arrangements that information is being collected or relayed, and who has access to that information.

There were some 23 documents found to have existed within the AFP, that detailed the arrangements between the organisation and other social media orgs, namely Google/Youtube, Skype, Yahoo, Facebook, MySpace and Twitter.

Access to these files and documents was denied completely — it would damage the international relations of the Commonwealth, in that the documents have been provided to the AFP by foreign governments, and in addition any release would prejudice the investigative, preventative and detective operations of the AFP.

It’s obviously not the case that revealing the broad overarching relationships and arrangements between the AFP and social media orgs would impact to the great detriment the AFP are espousing in their correspondence, the US Courts have compelled the release of similar documents sought in FOIA requests by the EFF.

There are extremely novel ways in which policing organisations are assessing the large amounts of data they are retrieving from social media organisations, for instance through the mapping of associations which have huge implications for the privacy of citizens and users, and we should be able to understand how enforcement organisations are using that data, and for how long it is stored.

So off I go to the OAIC…again.

Like Pulling Teeth

 

Recently, I made a request for access to the Attorney-Generals Department for draft legislation which was refused because it would not be in the public interest to release such information. It was covered fairly comprehensively by Delimiter & The Sydney Morning Herald, the refusal to release advice, preparatory materials and other information was roundly condemned. Similar efforts to make material available by the Australian Greens, strengthened by their access to parliamentary processes were shut down as the major parties colluded to shut down access.

Now begins the long process of asking for a review via the Office of the Australian Information Commissioner(OAIC), and fighting for the documentation to be released [PR]. The text of the appeal is below. I’m informed by the OAIC that there is a huge backlog of appeals for review, meaning it could be months before the process even begins and a case officer is assigned.

This is a situation the Attorney General’s Department is fully aware of. Any request for internal review, would surely fail, simply because of the organisational confirmation bias and they know there is significant lag at the OAIC. The AGD are fully aware of the political sensitivity of the issue and the legislative changes they’ve sought, but are gaming the freedom of information process to strategically delay or preclude public scrutiny and debate. The process of actually bringing government bureaucracies into the 21st century, and acting in accordance with platitudes of ‘Open Government’ really is like pulling teeth.

 

Attorney-General’s Department Response

Response from Attorney-General

Letter from the Attorney-General dated 5 October, and received today, in response to my letter raising the lack of transparency and inclusion in their policy development process.

 

An Open Letter to the German Ambassador

The following is an open letter to his Excellency Dr. Michael Witter, Ambassador of the Federal Republic of Germany and the German Government in Australia, Papua New Guinea, the Solomon Islands, Vanuatu and Nauru with regards to the so called #servergate scandal that has erupted overnight in Germany.

Dear Mr. Ambassador,

I write to you with regard to events that have transpired on Friday, the gravity of which have led me to question the democratic integrity of the Federal Republic of Germany.

On Friday morning, May 20, German law enforcement officers seized the information technology and communications infrastructure of the Piratenpartei, a legal and officially recognised political party. The seizures have transpired irrespective of the fact that the Party is not suspected of any illegal activity. Media reports suggest that the seizures have occurred as a result of investigations by the French law enforcement organisations into an alleged distributed denial of service attack, and event which itself occurred several months prior to the seizure. French investigators are of the opinion that one of the servers, which provides collaborative services and tools that may be used by the general public, may have been used by an individual or individuals in the planning of the alleged attack. Indeed, it should be noted, that we as a party also use services provided by the Piratenpartei which were affected by these seizures.

German law enforcement officials have not however, seized only the server in question, but instead all servers used by the Piratenpartei for communication and organisation.

The gravity of this situation in where a legal and officially recognised political organisation is paralysed in itself is deeply troubling. It is however compounded by the fact that this event has transpired two days prior to elections which are being held in the Free Hanseatic City of Bremen, in which the Piratenpartei is participating.

The seizure of essential campaign organisation and planning infrastructure is expected to severely hamper and paralyse the electoral campaign of the Party. Both the timing, in its proximity to the election in the State of Bremen in relation to the investigation of an event that transpired some months ago, and the sheer enormity of the seizure of the entire organisational and planning infrastructure, where only a small amount of data located on a single server is required, raise significant concerns about the political impartiality of German law enforcement officials and the sanctity of democratic institutions and processes.

I write to you to pose the following questions: will an inquiry be held regarding the actions of German law enforcement officials, with regards to their proportionality and whether they have interfered with the rights afforded under Article 21 on the Basic Law for the Federal Republic of Germany?

What undertakings will the government of Germany take to ensure that such interference in the political process does not occur again? I thank you for your time, and look forward to your response.

ACTA: Still troubling…

Last week, the Department of Foreign Affairs and Trade (DFAT) held an information session in Sydney, upon the finalisation of negotiations of the Anti-Counterfeiting Trade Agreement (ACTA). We attended, we asked a few questions, and received a few interesting responses. But nothing overly new.

This is a Frank and Transparent Discussion, But…

A little concerning early in the piece, was the statement by the meeting chair that the apparently frank and transparent discussions that were to ensue were to stay in the room. More than once, there were warnings that communication devices were not to be used to relay negotiating positions, or the responses of the bureaucrats answering our questions. At this point, I considered leaving the debriefing as Engstrom had in Brussels. What is the point of a debriefing that does not allow attendees to discuss the broader implications and impetus for the agreement with the community? This, in my opinion, completely opposes the rights that citizens have to demand transparency from government agencies, and the departmental personnel representing them.

However, in the end, there was no non-disclosure agreement offered, and I thought it was in our interest that we hear for ourselves what those in the castle were doing. I had attended a previous consultation offered to me by DFAT, and it was somewhat helpful in understanding the context and impetus of the agreement.

What exactly do you mean by ‘cooperative efforts within the business community’ in the agreement? Can this be interpreted as ‘three strikes’?

Whilst it was reiterated that the ACTA ‘treaty’ would not drive any substantive change in Australian law, there was no real answer as to what a ‘cooperative effort within the business community’ would entail. The Attorney General’s Department (AGD) revealed that various industry bodies, as of course is their strategy, had made representations in favour of the government legislating for three strikes. The Department is looking at doing ‘something’ in this area. We know Senator Conroy has previously mulled over ‘three strikes’ but the preferred outcome for ‘cooperation’ is an industry code. I’ve been skeptical of a ‘voluntary’ code and it seems at least a few in the industry feel the same way.

So whilst ACTA won’t demand immediate changes to Australian law, despite protests from DFAT, it does add to an environment that encourages changes in favour of a more strict enforcement. The AGD is slowly loading its legislative gun, and will put it to the head of industry — come to an arrangement, or we’ll do it for you. It of course all hangs on what the final word is in AFACT’s crusade against iiNet.

Mischievous Bloggers and Pesky Civil Libertarians

Bemoaning the scrutiny of civil society, negotiators put concern regarding the agreement to mischievous bloggers that had misinterpreted the intent of negotiators, like Jim. Thoroughly disappointed with the remnants of the digital enforcement chapter, those present reminisced about the questionable ‘footnotes’ that enumerated graduated response, which were simply attempts to craft safe harbours, and what might be required to guarantee them, which of course, included three strikes. Those present maintain that the extra-judicial termination of account holders from the Internet was never sought by any party…

So whats the point? Does this stricter enforcement benefit Australia?

We asked the panel whether there had been any studies conducted by the government, or any department as to what benefits stricter enforcement had brought to Australia as a result of the AUSFTA, it being cited as a reason as to why ACTA would not change Australian law now — had there been any attempt to quantify the benefit or damage caused by by the expansion of ‘intellectual property’ protections, for instance the extension of copyright terms, or the legal foundations granted to DRM. Was there a basis to not only accept this more comprehensive lock down, but entrench it?

The question was entirely avoided — there has been no study commissioned, there has been no investigation into the effects, we have to take the good with the bad, ‘IP was just a small part of a larger agreement, and we have to take the good with the bad — the government only acts for the benefit of Australia.’ Right.

The Department’s poor performance in negotiating the bilateral trade agreement with the US left Australia with many substantive changes that saw an unnecessary lock down of information, culture and knowledge at the behest of the US. In 2005/6 DFAT bought an old rust bucket from the US, at a hugely inflated price. They have now resprayed it, rebadged it and are selling it as ACTA, selling it as a victory by the Department, a diplomatic coup. You can put a tuxedo on a goat…

Circumvention of International Frameworks

As I gathered at my previous debriefing ACTA will be a used as a stick. Pirate nations like Canada must be made to fall into line, and whilst it consolidates IPR lockdown in the developed world, there is a serious concern that development and innovation will be stymied in the developing world, further entrenching and exacerbating imbalances.

In any event the mere existence of ACTA would if it is signed undercuts the legitimacy of WIPO and the WTO. It signals very strongly that not only are the developing countries unable to control the rent seeking of a few powerful corporations in their own countries but that they are willing to use their power to further that rent seeking in the rest of the world.

Andrew Rens

And this is the clear intention of negotiators, they ‘began at a more defined starting point’, and rather than ‘seeking to negotiate with 100s of nations’ and attempting to reconcile the divergent views on what role IPRs can and should play, they have sought to create an agreement of their own, external to the relatively democratic and inclusive frameworks already in existence.

We raised concerns about the clandestine nature of the negotiations. Interestingly someone countered that they had never seen the extent of transparency for a trade negotiation. I don’t accept that even this level of so called ‘transparency’ is sufficient, and hold even less respect for the view that ‘this is just the way international trade treaties are negotiated’. Perhaps it’s time that changed, and that the ‘Declaration of Open Government’ and its principles of informing, engaging and participating is recognised as something a little more binding than a hollow platitude.

Ongoing Transparency

Of more than a little concern is the ongoing transparency – with the EU now taking first steps in making the agreement a reality (although by no means does it mean the battle is over) — concern turns more to future operation of the so called “ACTA Committee”.

There have been continuing complaints regarding the transparency and inclusiveness of the ACTA negotiation process. Since the formal announcement of the negotiations on October 23, 2007 the process has been conducted in relative secrecy and to the exclusion of civil society.

The institutional arrangements that create the “ACTA Committee” do not resolve this concern by mandating openness, transparency and inclusion of civil society. Leaked draft papers provide insight into some of the outcomes that were initially sought through the ACTA process, and it is imperative that an avenue for community and stakeholder consultation is mandated by these institutional arrangements.

What happens now?

The agreement goes to ‘legal review’ — which is on right now at the Observatory Hotel, in Sydney. (Sorry about the weather!) The most important decisions are made here, things like which font is used for the agreement. A friend of mine has proposed wingdings.

After this, the agreement will go to Cabinet and the Joint Senate Committee on Treaties which will take submissions and make recommendations. However, it is convention that the Minister/Cabinet retains the ultimate say as to whether Australia will sign this treaty.

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