SENATOR SCOTT LUDLAM: I think the role that I've tried to play, and that the Australian Greens have tried to play here in Australia is to provoke a tremendously important debate that simply wouldn't be happening otherwise. Because under the previous government and under this government, as soon as somebody mutters the words "national security" under their breath, it tends to close political debate down. And what WikiLeaks has been doing for many years are sort of radical transparency initiatives, and publication of material that quite powerful individuals and institutions would probably rather wasn't in the public domain. I think that's really what journalists are for. That's what they're meant to do. And similarly, with Edward Snowden, again working in a very different context with access to quite different material, again has really blown the lid off, effectively the state inside the state. And similarly with Edward Snowden, our Attorney General just refers to him as a traitor, refuses to answer really basic questions about how Australia's implicated in some of the systems that were revealed by Mr Snowden. And effectively, because the Labor Party's too terrified to play any role in the debate, if it wasn't for us in the cross benches, it would be completely closed down. I think these individuals, who've in their own way, paid quite a heavy personal cost for the role that they've played, are tremendously important, either as publishers or as whistleblowers, in disclosing stuff that otherwise wouldn't be in the public domain, and people would be ignorant of. And nothing that's been disclosed threatens national security. But I believe some of the programs that have been revealed, I think threaten democracy. So it's strongly in the public interest that this stuff is brought to light and that it's discussed.
IMPACT UPON CITIZENS OF AUSTRALIA’S NEW DATA RETENTION SCHEME
SENATOR SCOTT LUDLAM: To be honest, I think the impact on the average citizen would be almost imperceptible apart from the fact that things are going to cost more. People don't realise, I guess, exactly where their taxes are going. And I think the workings, the inner workings of government and how they shuffle funds around to pay for some of these dopey ideas are pretty opaque and probably invisible to most people. You may find that data charges go up. But in the short term, I think most people won't know any change at all. And that's what makes these programs so dangerous, is that it's not that a little warning bubble goes up when somebody's capturing your data, or when it's being analysed, or when somebody's collected it from the phone company. People remain completely in the dark, actually, as to how these systems operate. And the government's been quite right, in the sense where they've been saying, look, the data retention scheme didn't expand the powers of the agencies. If anything, it actually narrowed the range of agencies that have access to material. But what it is doing, obviously, is creating this vast new data pool that doesn't exist today-- that within a couple of years will exist-- for the kind of open season on metadata that already exists to go to work on. There's this huge new pools of material that can mined and analysed and mapped together. If you rely on public interest journalism, if you think that whistleblowers exposing corruption are important, even if you're not one of those yourself, if you believe that people should have a right to demonstrate against fossil fuel developments, uranium mines, whaling, without sort of being arbitrarily surveilled and punished by the state, then we actually all have a stake in these things. So even if it's not immediately impacting on us as individuals, which is a rule of thumb -- look, I'm not doing anything wrong, I've got nothing to hide, I don't have anything to fear -- it's not actually how democracies function, and nor should they function that way.
NOT JUST ABOUT NERDS
SENATOR SCOTT LUDLAM: I think for some of the regulators, that's definitely the case. I think some in government understand it perfectly well-- that this is premeditated. It's not accidental that we're creating dragnet surveillance systems to be able to intrude into ordinary people's lives. That isn't coming about because of any technical illiteracy on behalf of the people who are pushing it. It is difficult to get it into the top ten of people's concerns. Politics is a pretty crowded environment. There will always be people who care, for whom this is the number one thing. And I know for a fact that the data retention debate was absolutely a vote changer for a large number of people. But that probably ran into the tens of thousands; it didn't run into the millions. And we made the front page a couple of days in a row. It was a TV story for a period of time. Then it disappears. I suspect, look, in six months time, if you conduct a poll of a random hundred people walking down the street, what are the top twenty issues that you're most concerned about at the moment? I'll be very impressed if unauthorised indiscriminate intrusion by state agencies over my data makes it into the top twenty. I think it's quite unlikely that it would. It's something of the boiling frog syndrome. We saw it come to a bit of a head last month in the data retention debate. But I think to be honest, we've got to re-kickstart, not just to debate about digital rights, but more about human rights. We don't have a strong body of human rights law in Australia. We don't have any constitutional or statutory human rights protections. We've got some implied rights in the Constitution. People probably feel as though they have better understanding of how the Bill of Rights works in the United States. And that's why the debate there is so much more interesting than it is here. Similarly in Europe, where they're able to knock out a data retention directive in their courts because they have a strong body of human rights law to benchmark these sort of proposals against. We lack that here in Australia. So we've got some of the most aggressive policies in the world for intrusion into private citizens, and some of the weakest human rights protections. So it's a much bigger task than just learning definitions of metadata and understanding how mobile telephony works. We've actually got deeper problems. And I think it's going to require broader movement building and linking up with other people so that people are aware this is not just about nerds. This is not a technological discussion that we're having. It's much bigger than that.
OVERSIGHT OF INTELLIGENCE AGENCIESBEN WIZNER: The problem of oversight of intelligence agencies is a very hard one in democracies. If we accept that there is some information that governments can legitimately withhold from the public, as most of us do, then we have competing values. We have the value of self defence against the critical value of self government. And sometimes, those values are both at their highest in the same situations. If you think about, for example, war, that's where the government's interest in secrecy might be at a higher level, but it's also where the public's right to know is at its highest level. So this is a serious problem. In the United States, we have set up mechanisms that are supposed to negotiate between those two competing values. We have a court system that gives secret surveillance orders. We have committees in our Congress that are specialised intelligence review committees. And these are the oversight entities that are supposed to stand in for the public when it comes to balancing these values. And I think anybody who says this oversight structure has been a success has had his head in the sand. In fact, it was a miserable failure for many of the last several decades, that is until at least, Edward Snowden, came along and dramatically brought the public into this conversation. So, for example, for the Snowden revelations, when we tried to use the court system to challenge the legality and constitutionality of NSA surveillance, we were thrown out of court and told that the subject matter was too secret to be litigated in our courts and that we didn't have legal standing to pursue these claims. You've seen over and over on television the top intelligence officials in the US government boldly lying in Congress about what kind of collection they were doing and members of Congress who knew they were lying failing to correct that. This was the system that was set up to do this job. And the reason why we know that it failed is that as soon as the public was brought into this discussion, as soon as Edward Snowden went around those mechanisms to journalists and the journalists communicated to the public, all three branches of the American government have changed course, that these programmes as they existed have not survived public scrutiny. So we now see the legality of these programs being litigated in court rather than being thrown out of courts. We now see Congress in the United States debating for the first time in 50 years, curtailing the authority of intelligence agencies to conduct surveillance. And even the President of the United States has said that some of these programs were indefensible and need to be ended. None of that would have happened if the system had been allowed to run its course. So one way of thinking about oversight, is instead of seeing whistleblowers and the media as an alternative to oversight, we should conceptualise them as being a critical part of oversight, that without aggressive investigative journalists and without some courageous insiders who are willing to risk their liberty to inform the public, this system actually wouldn't work. And that's one of the real ironies of the Snowden revelation is that this person who dramatically broke the law, in fact, revitalised the oversight mechanisms that his detractors are claiming he should have used.
PRIVACY IS NOT ABOUT SECRECYBEN WIZNER: There is an argument that we hear in many societies. We certainly hear it in the United States, and I'm sure you hear it in Australia, that people who have done nothing, nothing wrong, have nothing to hide. I always say that it's the wrong answer to the wrong question. It's the wrong answer, because we all have plenty to hide. And we don't only hide things that we do wrong. We hide things that are intimate and in critical parts of our lives that we just don't want to share with other people. But it's the wrong question because privacy fundamentally is not about secrecy. It's about power. It's about context. It's about control. It's about being able to have the autonomy to make decisions about who we are. It's about the need to be able to test out identities and ideas without government scrutiny. The security technologist Bruce Schneier, who I think has been interviewed for this course, makes a wonderful point. He says that if we had had perfect enforcement of the law, enabled by perfect surveillance, we would never have had a movement in the United States for gay and lesbian equality, for legalisation of marijuana. These are activities that were illegal and, not just marriage, but actual homosexual activity, was illegal in many American states until recently. And had those prohibitions been enforced through surveillance, we would not have been able to evolve as a society to a point where we realised that we needed to change those laws. So we do need to have space. We don't want technology to perfectly enforce all the laws so that we don't have room to explore those identities. And I make another point, which is that, to evaluate the risk of surveillance, we can't just take a snapshot of our societies as they are. We have to have the imagination to see where these technologies are going to lead us. And they're going to lead us to a place where every one of our movements is tracked. Imagine drones flying in the skies above all of our cities and towns with cameras that recorded every square inch of the public so that the government was sitting on a comprehensive surveillance time machine where it can simply hit rewind and reconstruct every detail of our lives. Now this sounds like a dream scenario for law enforcement, but it should be a nightmare scenario, I think, for people in a free society, where we should not be subjected to that kind of tracking, and collection, and surveillance, if we're not suspected of any wrongdoing. We're going to be giving our governments too much power. We're going to make dissent too dangerous. And we're going to wake up one day in a society that looks very different than the one that we live in today.
PUBLIC AND PRIVATE SURVEILLANCE
BEN WIZNER on public and private surveillance: Well, I think first we have to talk about the ways in which they're similar, and then we have to talk about the ways in which they're different. They are similar at times and even almost the same thing when the government is able to enlist the private sector to collect data for it. This was the PRISM program that Edward Snowden revealed. There are many other ways in which the government relies on technology companies to actually be its surveillance agents. And if the law makes it easy for the government to get information from private corporations, then private surveillance is public surveillance. And we're actually talking about the same problem, and we can discuss this more later. But I think that one of the most important outcomes of the Snowden revelations is the way in which it has made corporations, technology companies more adverse to governments and spy agencies, to make them, for business reasons, perhaps, stand up more for their customers' privacy and not work in the dark hand and glove with these governments to turn over information. There is a way, though, in which it's a different problem. And you can think about the difference between being a citizen and being a consumer, but they do raise different sets of issues. I have said in the past that I want technology companies to stand up to government and protect me as a citizen. But I want the government to stand up to technology companies and protect me as a consumer-- that we're going to need to have more effective and more powerful government regulators to make sure that we're not abused in this era of big data. And if we want to have an understanding of what the future will be, we can think about how big data on both the government side and the corporate side is already reshaping our lives. In the United States, your credit score, which is some secret number that is generated through secret algorithmic processes by various corporations, can have a real bearing on whether you can get a loan, on whether you can rent an apartment. This is very important and anyone who's ever encountered an error on a credit score has already tasted the future on just how difficult life can be when we have all of this collection with real world consequences, but non-transparent processes for getting fairness, for getting due process. On the government side, we already have different lines at our airports for so-called trusted travellers versus less trusted travellers. And so, you could imagine a world in which each of us has a consumer score and each of us has a citizen score, and these will actually have real bearings on what options are available to us. And that is the way that we're headed unless we have the right kinds of protections built into these systems, to protect us. The American privacy scholar, Daniel Solove, has made the point that when we talk about George Orwell, we're probably using the wrong metaphor for the modern surveillance state. We should be talking about Franz Kafka. We should be thinking about The Trial, these massive faceless bureaucracies that have a lot of information about us that are using it in ways that we can't see, but affect us very, very concretely without open, meaningful ways for us to protest.
RESPONSES TO SURVEILLANCE
SENATOR SCOTT LUDLAM: I think it's pushing out in multiple different ways. We had 500 people at the CryptoParty that we hosted in north Perth last night, that was almost completely sold out, and on a Wednesday night -- a couple of weeks after the data retention bill passed, interest, if anything, is higher than it was before, because people are realising that they've been sold out by the state. So one consequence we're seeing is a spike in the use of VPNs, virtual private networks, and a surge in interest in cryptography, in online anonymity, and in other tools for people to protect their data and protect their security. So I guess that's one element. Another element is that the technical community in the United States, and Europe, and elsewhere is getting very serious about baking in strong cryptography to the next generation of communications tools. So at the moment, if you want strong privacy protections-- it's changing, I guess-- up until fairly recently, you could say it actually required a reasonable amount of technical skill. And strong cryptography still does. You have to really want that. You need to have a reason to pursue those tools. But I think what we will see over the next couple of years is the community, the technical community, and the engineers, and the people who write the stuff and make these tools-- in the United States, there's a palpable feeling of betrayal that their own government would do this to them. And in Europe; it's the European technical community being very well aware that their own governments are up to this as well, also don't take kindly to the fact that they've been on watch lists from the United States government who they thought were allies. So that, then, creates, even if ordinary users only have a passing interest in cryptography, you will soon, I think, people will be in a much better position and a wider variety of tools available on the market, to choose those by default, to protect your privacy, that retain very little metadata or kind of erase their tracks as rapidly as they're made, protect anonymity, and bake strong cryptography into the tools themselves. I think that's actually a very positive sign. And the third thing is, I guess we will see the emergence of a digital rights community. People are feeling pretty burnt about the way the data retention debate panned out. The fact that we didn't have the numbers, that the Labor Party caved in-- I think there's a strong sense in the community that the next time they try it on, the push-back's going to be even sharper-- that we didn't have enough support this time. But it's actually upset a great many people, the way that it's happened.
WHAT DOES THE FUTURE LOOK LIKE
PROFESSOR MELISSA DE ZWART: In this module, we'll hear from two final speakers. Having explored many facets of the value and risks of metadata, this is a good place for us to evaluate the future of surveillance, data retention, and privacy. These two speakers will remind us of the importance of this debate from domestic and international perspectives. In week two, we heard from Ben Wizner of the ACLU, regarding issues of the vital role played by journalists in ensuring the accountability of governments with respect to surveillance regimes. And in particular, the essential involvement of investigative journalists in the reporting on the revelations by Edward Snowden regarding mass surveillance. In this final section of the course, we will hear some further observations made by Mr Wizner regarding oversight and accountability, the conjunction of public and private surveillance, and the role the public will need to play in participating in future policy development in this vital area. He reminds us that we need to look forward to the future, and to ensure that we build a society where people have spaces, both physical and virtual, where they can explore their own identities, to learn and to grow safely, away from an all-seeing and all-judging gaze. Following Ben Wizner, we will speak to Senator Scott Ludlam. Scott Ludlam is an Australian Greens senator for Western Australia. He's spoken out in support of WikiLeaks and Edward Snowden, and in particular, has been a voice of opposition against the introduction of mandatory data retention laws in Australia. Senator Ludlam ponders the questions of what impact the collection of metadata will have on the average citizen, and building upon our earlier discussion of the value of becoming engaged in the debate regarding the collection of metadata, and the oversight of collection agencies going about this task, he explores how citizens may become engaged in this process. He talks about the importance of accountability, transparency and oversight to democracy, and thus the role played by whistleblowers. He then addresses the consequences of uptake of growing interest in the global surveillance debate, and responses to data collection, concluding as we do, that this debate concerning both digital and human rights, is not just about nerds. Everyone has a stake in these issues. Like Ben Wizner, he exhorts us to look forward, and to ask what we want our society to look like. Having been engaged throughout each week of the MOOC, you are now enmeshed in these debates, and empowered to look forward to how we want to manage our future. You've heard a range of viewpoints, and we now encourage you to critique these views, and to form your own conclusions. Let's now hear from Ben Wizner and Scott Ludlam.
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