This is a guest post from Angela Daly & Angus Murray, Members of the Policy and Research Standing Committee, Electronic Frontiers Australia. Angela is also a member of Australian Privacy Foundation's board of directors.  If you have comments on this post, you
can contact Angela or Electronic Frontiers Australia on Twitter

Between 15th-19th of September, in the week leading up the first year anniversary of the 13 Necessary and Proportionate Principles, EFF and the coalition behind the Principles will be conducting a Week of Action explaining some of the key guiding principles for surveillance law reform. Every day, we'll take on a different part of the principles, exploring what’s at stake and what we need to do to bring intelligence agencies and the police back under the rule of law. You can read the complete set of posts at: https://necessaryandproportionate.org/anniversary. The Principles were first launched at the 24th Session of the United Nations Human Rights Council in Geneva on 20 September 2013.  Let's send a message to Member States at the United Nations and wherever else folks are tackling surveillance law reform: surveillance law can no longer ignore our human rights. Follow our discussion on twitter with the hashtag: #privacyisaright

Fighting Surveillance Law in Australia

In Australia, necessity, proportionality and adequacy are rarely invoked when it comes to debates on mass surveillance - and, indeed, other areas of Internet law and policy, as our current discussions around online copyright infringement show. This is a problem when it comes to truly ‘tackling’ the issue of surveillance.  Necessity, proportionality and adequacy are all important considerations when proposing legislative solutions to such complex issues - and ensuring that citizens’ (and non-citizens’ for that matter) privacy is respected and upheld.

Yet mass surveillance is firmly on the agenda here, with the Australian Government proposing a law which would involve communications operators retaining data about their customers, which law enforcement agencies would be able to access. This would apply to all customers, not just those suspected of crimes, and so would constitute a form of mass surveillance, of all citizens.

However, the Australian government has done little to assure Australians that its data retention plans are necessary, proportionate and adequate. Indeed, the Attorney General George Brandis, even struggled to explain precisely what data the scheme would be gathering in the first place, which does not inspire confidence that the government itself even understands the proposals. Nevertheless, this discussion explains the meaning, and relevance, of the concepts of necessity, proportionality and adequacy in relation to surveillance and the use of metadata.

The first and most obvious question that should be in every Australian’s mind in relation to surveillance and data retention reforms is simply, ‘why do we need these laws’? This thought is the foundation of the concept of necessity. The fundamental principle is that it is necessary to implement certain laws to provide safety and security to the Australian community. An example of this is that it is necessary to provide a framework for emergency medical support to the community because it is in the community’s interest to preserve life.

The issue with the proposed (and existing) mass surveillance laws is that their justification is weak, to say the least. Although there has been examples of the use of targeted surveillance and of metadata in identifying suspects, mass surveillance is based on a ‘drag net’ approach where a very small portion of the population might be committing an offence. This attitude steps past the presumption of innocence and effectively creates a system wherein people are treated as suspects, rather than citizens.

Adequacy is the next point for legislative development. Adequacy is the concept that the solution being proposed is the most appropriate way of addressing an issue.Does the solution resolve the problem which has been identified in an efficient and effective manner? Is it the best way of doing so? This is not the case with the proposed data retention and surveillance legislation. There is no strong evidence that such a system works in preventing terrorism or other serious crimes.

Both the concept of necessity and adequacy are underpinned by the more complex concept of proportionality. This is the idea that laws, particularly those interfering with individuals’ rights, should ‘fit’ the objective they are aiming to achieve. Proportionality features strongly in the law of the European Union when considering new measures, that these measures must have a legitimate aim, the measure must be suitable to achieve that aim, there ought not to be any less onerous way of achieving that aim, and the measure must be reasonable, taking into account all relevant parties’ interests. While the data retention proposals are based at least in part on similar measures in the European Union, Australians do not enjoy the protection of a similar concept of proportionality in our legal system. This is significant given the EU’s data retention laws were recently invalided by the Court of Justice of the European Union (CJEU) for, among other reasons, being a disproportionate interference with ordinary citizens’ (the vast majority of whom were law abiding) privacy and free expression.

Indeed, Australians are even less protected compared to our European counterparts vis-a-vis mass surveillance given we don’t even have a constitutional right to privacy, and enjoy, at most, a very weak ‘implied right’ to political speech. Our laws cannot be struck down for being disproportionate to their aims, or for unduly interfering with rights that the law does not recognise. Laws which are not good enough for Europeans and their privacy and free speech rights should not be good enough for us either - even if our constitutional and legal framework does not give us the means to challenge such laws based on the necessity, proportionality and adequacy principles.

While our country is an enthusiastic participant in the international ‘5 Eyes’ mass surveillance partnership, we as Australians are at a disadvantage in terms of challenging such practices compared to our counterparts in these other countries. This makes opposing the data retention proposals before they become law all the more important. An awareness of how these proposals, and mass surveillance in general, do not comply with the concepts of necessity, proportionality and adequacy is fundamental to ensuring that Australians are treated as citizens, not suspects.