The War on Metadata
Ideas are fashioned weapons. When applied to the right spot, their result can be immediate, overwhelming, collapsing. The pressing need for populations across countries to revolt against the revolting, to assert sovereignty over themselves, their information, their very sense of being human, is now greater than ever.
The metadata authoritarians, the wet dreamers of information, habituated paranoids, must be challenged. Their activities must themselves be subject to surveillance. Franz Kafka’s nightmarish world, with its sinister bureaucratic pitfalls, potholes of arbitrary acts by state, must be inverted, its legacy reversed. Their actions must themselves be countenanced by judicial scrutiny. The law, in short, must be given its sight again.
The sinister nature of the modern information regime lies in its seemingly benign quality. Big Brother is a celebrity show, not a vicious, maniacal controller of human behaviour, a murderous pestilence against people’s dignity. The dystopia we are readying ourselves for will be all the more hideous because it demands complicity, that need to be protected against ourselves by those who claim they know best.
This is a social contract of a different sort, one signed in a somnambulist state. It demands a surrender of information to social media outlets because we demand to sup with the devils of the virtual world. It demands a reduced privacy regime because controlling privacy is much like controlling air in a vacuum – it doesn’t ‘exist’. It entails that governments are entitled, indeed mandated, to gather huge pools of data to dip into, constructing personalities, trends and tendencies. “We know you before you know yourselves.”
The issue of gathering information to protect state security is a symbolic justification. It is rarely a genuine one. Policing and security can be the business of the shadows, but it should never be an unaccountable one. One doesn’t convict an entire population for the crimes of one member, but the premise of the metadata state reverses that assumption. We are all pre-emptively guilty of something, according to that worldview. The justification here is that we have nothing to worry about if we have done nothing untoward. The innocent shall be free.
An embryonic WikiLeaks political party in Australia, the first anti-surveillance party of its type in the world, is determined to accelerate the campaign against the metadata troops. For his speech, delivered from the Ecuadorean embassy to the International Symposium on Electronic Art in Sydney, its founder Julian Assange promoted the idea that law enforcement and security agencies should obtain judicial warrants to access metadata and telecommunications. Nothing radical, except to the metadata conscripts.
Currently, the law of Australia regarding metadata regulation pales in comparison to its other legal cousins – senior pen pushers and police officers have the say as to whether access to internet data records can be granted.
Such suggestions for reform have been seconded by the Greens Party, spearheaded by Senator Scott Ludlam of Western Australia. Ludlam’s push here is to introduce a bill requiring organisations to obtain a warrant when accessing the telecommunications data of Australian citizens. Currently, in Ludlam’s words, “no crime needs to even be afoot – these requests are basically just fishing expeditions” (Sydney Morning Herald, Jun 12).
In the 2011-2 financial year, 300,000 requests for metadata were made by Australian authorities covering everything from the animal welfare protection group the RSPCA to Australia Post. Some armchair idiot is evidently enjoying the sheer banality of it.
The proposal has been sneezed at by the Gillard government, that esteemed loyal entity of U.S. surveillance which fears that it won’t get a seat at the White House dining table if it heeds the warnings of WikiLeaks and any likeminded crew. One would expect the defender of the legal system, the Attorney-General Mark Dreyfus, to be made of more enlightened mettle, but this would be stretching it. By his own admission at a speech at the Privacy Reform and Compliance Reform in Sydney (Jun 12), “Privacy is often a key consideration in the development of law and justice policy.” Except, of course, in certain cases, where it would be “impractical” to expect law enforcement authorities to apply for judicial oversight.
As Assange has pointed out, “the Gillard government and the Abbot-led opposition have not condemned the revelations that whistleblower Ed Snowden has brought to the world’s attentions” (The Age, Jun 13). Slaves, of course, rarely realise the state of their own subjugation.
The war against metadata will be long. Even if a regime of warrants is established in countries that currently do not require it, there is no guarantee that it will be effective. The United States, with such amendments as the First and Fourth, has a legal system that, on paper, protects citizens from undue interference by the state. Yet it was that very same state that gave us PRISM.
The warrant is dying a slow and terrible death in the land of the free. The Foreign Surveillance Court, established in 1978, is essentially clandestine. It is a secret court comprising 11 federal judges that grants secret warrants. The applicant is the Justice Department representing the FBI or NSA. Naturally, mused author Tim Weiner, there are no defence lawyers present in the process (NPR, Jun 10). Naturally, the majority of such warrants are approved – judges don’t want their heads on the stately platter if they are found to have bungled a decision.
This war will involve various closely fought campaigns. It will entail an adjustment of the security culture that sees threats before it sees stability, fear before it finds comfort. It will demand that politicians who are elected oversee their portfolios and allow the public, that ever feared phenomenon of the polis, access to their activities. God forbid it might demand the spineless to grow spines.
Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: firstname.lastname@example.org