Visit ArabTopics.com

What Australia can learn from Europe’s failure with Data Retention

Poster from Leben Das Anderen, upside down. Used according to permission requirements.

Australia: This month, Australia’s law mandating telecommunications data retention went into effect. It is clear that Australia learned absolutely nothing from Europe’s abysmal 10-year failure with this exact law before it was finally struck down by courts as utterly incompatible with human rights at the core of its idea. Here’s how Australia can fail a little faster on this horrendous concept by realizing it’s just not inexcusable, it doesn’t even work.

In the wake of the 2004 Madrid bombings, a handful of hawks saw their opportunity to pass unprecedented mass surveillance legislation, where people could be retroactively wiretapped – something that was only possible if everybody was continuously wiretapped, all the time, so it could be retroactively reviewed. Now, actual wiretapping would not have flown, so they went with the politically-new word “metadata”, which didn’t sound nearly as bad but was conceivably much worse because it was machine-sortable: Everybody’s communications metadata would be stored for a long time with the sole objective of using it against them.

It was just four people – as little as four people out of five hundred million – who were ultimately driving this disaster into being in Europe, much through deception and Potemkin façades. In Sweden, the concept was driven pretty much only by the then-minister-of-Justice Thomas Bodström, and skilled activists at the time traced how he couldn’t get the Swedish Parliament to approve anything like it (for good reason), so he went for the infamous legislative “Brussels Boomerang” instead: make it a federal law at the EU level, and tie the hands of the Swedish Parliament to do it regardless of their opinion. There were three other like-minded people from other states, and that was all it took for the proposal to gain momentum at the Brussels level.

On December 14, 2005, the European Parliament approved a mandate for all states to implement “telecommunications data retention”, or as it would be more accurately described, “preemptive ongoing wiretapping of everybody in case we decide we want it later”. The purpose is to combat “terrorism and other crimes”. That little “and other crimes” turned out to include basically everything, up to and including jaywalking – and in practice, it would be almost exclusively used to hunt ordinary people sharing music and movies outside of the monopolized copyright channels.

So all of a sudden, everybody’s activity was recorded – along with timestamps and their precise geographical position – whenever they did the most minute form of communication. It was a mass tracker.

The problem is that surveillance of innocents in case they should become suspects later is fundamentally incompatible with a democracy.

However, this one didn’t go over well in Europe, even with a decision from the federal European parliament. A full one-third of European states – nine out of 27 – refused to implement the preemptive surveillance of innocents, seeing it for what it was. In other states like Germany, it was implemented and immediately struck down by their constitutional court, for good reasons.

In pushing for acceptance, there was no shortage of Potemkin façades and misdirection from politicians. An example of the talking points used:

“Telecom companies have always recorded this”: No, they haven’t. In fact, they have been absolutely, positively banned from recording any of this, except – except for what was absolutely needed for billing purposes. Data retention switched bulk collection of everything from “absolutely forbidden” to “mandatory”, and that’s not the small change they wanted to pretend it was.

“It’s not government surveillance, it’s the telecoms recording your activity”: As if conscripting a corporation into a most unwilling agent of the government made it not the government’s action any more. This is a particularly disgusting way to deflect responsibility for your actions.

“It’s necessary to prevent terrorism”: Except it was absolutely useless for this, and used in practice only to punish ordinary file-sharing people.

On the other side of the fence, you had a few diligent politicians like Malte Spitz in Germany, who used his own data to show people just how horrible the tracking was – he made a YouTube video showing that he could essentially be followed block by block as he was going about his daily business, and also held a TED Talk about it.

Activists also kept pushing, relentlessly, providing actual data that politicians didn’t want to exist. The German AK Vorrat – loosely translated as “working group, data retention” – was one of the more visible ones, and who pointed out that the collected data had only hade a difference in 0.006 percent of criminal cases.

Zero point zero zero six per cent.

In most countries, that’s the equivalent of hiring two or three extra investigative police officers, but at the cost of ordinary police pay instead of the data retention’s cost of about a billion dollars per year (or much more). In other words, the data retention is not even effective in the best of cases – neither for police operations nor for cost-efficiency. You could have solved something like 1,000 times more additional crimes for the same amount of money, just by hiring regular investigating police officers doing ordinary honest police work instead of treating everybody as a suspect.

Now, fortunately, it wasn’t just activists pushing back. Since the governments had audaciously told the telecoms operators to foot the entire bill for this, they were not happy and had a real financial interest in scuttling this construct. That, in the end, is what caused the data retention’s undoing.

It was billions of dollars of cost for the telcos that was the ultimate driver to end data retention. It was the human rights principles that gave those telcos the right of way in court.

Because the telcos challenged the mandate to retain data – the most customer-focused ones flat out refused to comply, saying “take us to court”. The government didn’t, but took them to their own authorities instead (the US FCC equivalent), at which point the telcos took those authorities to court.

And won.

Once the courts had ruled that telcos were no longer required to store all metadata, and importantly, absorb all the cost for doing so, data retention was dead in practice. But it would take another couple of years to really drive the point home.

The legal escalation went all the way to the European Court of Justice (ECJ), which is the European equivalent of a Supreme Court. This escalation took a decade in total, but on April 8, 2014, the European Court of Justice ruled that the Data Retention Directive – the EU “federal law” – so utterly incompatible with human rights, that the court didn’t just declare it not in effect from that date; the ECJ ruled that it had never been in effect, annulling it retroactively and effectively erasing it from existence as a mark of shame. The court couldn’t have put its foot down any harder.

Most politicians in European states at the time noted that while they were now not mandated to preemptively violate every citizen’s privacy, there was not yet any ruling banning them at a federal level from doing so, and they sought to tweak details in their “safeguards” to keep the constructs. This missed the point of the ECJ entirely:

The problem isn’t that the data isn’t properly secured, or who has access to it and when. The problem is that surveillance of innocents in case they should become suspects later is fundamentally incompatible with a democracy. It is the core idea that is broken and unacceptable, not the details of implementation.

This disconnect baffled the courts entirely, as their key point had been made perfectly clear in the 2014 ruling: such a construct is incompatible with a democracy. Why did politicians persist in pretending it was a matter of implementation details, and not the core idea? More importantly, why was this still happening in individual states, even though there was no more federal directive mandating it?

Hawk politicians in those individual states were arguing that while the European states were no longer required to have data retention at the federal level, they were also not forbidden from having it as a state initiative, and continued it on the state level that had been initiated by the federal law now shredded by the ECJ. This position at the state level could only have come from somebody who didn’t read the fuming verdict from the European Court of Justice in 2014, as it tore up the Data Retention Directive by its roots and lit it ritually ablaze expressed in the strongest anger that judicial language is capable of expressing.

So in the judicial equivalent of “didn’t you morons hear us the first time”, the ECJ finally ruled in December of 2016 that all European states are utterly forbidden from mandating data retention from its telecommunications providers. This gave the telcos who had been objecting all along wind in their sails, and most of them deleted all the collected data on the same day to trumpet fanfares and advertising. Meanwhile, the politicians who had been advocating these violations of human rights muttered increasingly incoherently, and have not been heard from again so far, six months later.

In conclusion, while Europe had its turn with the hated Data Retention, it would take the courts twelve years to undo it. Let us at least hope that others can learn from this mistake and not have to do all of it all over again.

Privacy remains your own responsibility, as always.

Syndicated Article
This article was previously published at Private Internet Access.

(This is a post from Falkvinge on Liberty, obtained via RSS at this feed.)

Source: 
Rick Falkvinge

Dear friends of this aggregator

  • Yes, I intentionally removed Newsbud from the aggregator on Mar 22.
  • Newsbud did not block the aggregator, although their editor blocked me on twitter after a comment I made to her
  • As far as I know, the only site that blocks this aggregator is Global Research. I have no idea why!!
  • Please stop recommending Newsbud and Global Research to be added to the aggregator.

Support this site

News Sources

Source Items
Grayzone Project 11
Pass Blue 55
Dilyana Gaytandzhieva 14
John Pilger 409
The Real News 367
Scrutinised Minds 27
Need To Know News 1678
FEE 3232
Marine Le Pen 230
Francois Asselineau 25
Opassande 53
HAX on 5July 220
Henrik Alexandersson 540
Mohamed Omar 241
Professors Blog 10
Arg Blatte Talar 37
Angry Foreigner 17
Fritte Fritzson 11
Teologiska rummet 32
Filosofiska rummet 70
Vetenskapsradion Historia 116
Snedtänkt (Kalle Lind) 177
Les Crises 1869
Richard Falk 115
Ian Sinclair 79
SpinWatch 50
Counter Currents 6295
Kafila 355
Gail Malone 33
Transnational Foundation 221
Rick Falkvinge 93
The Duran 6541
Vanessa Beeley 93
Nina Kouprianova 9
MintPress 4806
Paul Craig Roberts 1151
News Junkie Post 44
Nomi Prins 24
Kurt Nimmo 191
Strategic Culture 3453
Sir Ken Robinson 16
Stephan Kinsella 66
Liberty Blitzkrieg 794
Sami Bedouin 61
Consortium News 2149
21 Century Wire 2906
Burning Blogger 280
Stephen Gowans 67
David D. Friedman 128
Anarchist Standard 16
The BRICS Post 1464
Tom Dispatch 409
Levant Report 17
The Saker 3426
The Barnes Review 471
John Friend 364
Psyche Truth 146
Jonathan Cook 135
New Eastern Outlook 3101
School Sucks Project 1736
Giza Death Star 1563
Andrew Gavin Marshall 15
Red Ice Radio 567
GMWatch 1799
Robert Faurisson 148
Espionage History Archive 34
Jay's Analysis 742
Le 4ème singe 87
Jacob Cohen 197
Agora Vox 10732
Cercle Des Volontaires 417
Panamza 1638
Fairewinds 103
Project Censored 720
Spy Culture 367
Conspiracy Archive 66
Crystal Clark 11
Timothy Kelly 488
PINAC 1482
The Conscious Resistance 546
Independent Science News 66
The Anti Media 5566
Positive News 820
Brandon Martinez 30
Steven Chovanec 61
Lionel 259
The Mind renewed 210
Natural Society 2461
Yanis Varoufakis 813
Tragedy & Hope 122
Dr. Tim Ball 63
Web of Debt 125
Porkins Policy Review 347
Conspiracy Watch 174
Eva Bartlett 563
Libyan War Truth 280
DeadLine Live 1905
Kevin Ryan 61
BSNEWS 1964
Aaron Franz 186
Traces of Reality 166
Revelations Radio News 121
Dr. Bruce Levine 111
Peter B Collins 1335
Faux Capitalism 205
Dissident Voice 9540
Climate Audit 220
Donna Laframboise 355
Judith Curry 1052
Geneva Business Insider 40
Media Monarchy 1991
Syria Report 70
Human Rights Investigation 90
Intifada (Voice of Palestine) 1685
Down With Tyranny 10104
Laura Wells Solutions 27
Video Rebel's Blog 411
Revisionist Review 485
Aletho News 17825
ضد العولمة 27
Penny for your thoughts 2655
Northerntruthseeker 2040
كساريات 37
Color Revolutions and Geopolitics 27
Stop Nato 4615
AntiWar.com Blog 2688
AntiWar.com Original Content 6105
Corbett Report 2085
Stop Imperialism 491
Land Destroyer 1105
Webster Tarpley Website 938

Compiled Feeds

Public Lists

Title Visibility
Funny Public