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Friday, February 21, 2014

Transparency light in the dark world of surveillance and intelligence

Stephanie age 6
I didn't include surveillance and intelligence matters in my 'straws in the wind' list but they deserve a mention in the context of the government's approach to transparency. 

To generalise, the government doesn't talk publicly about such things. And all Australian intelligence agencies are entirely exempt from the Freedom of Information Act.

 It's quite a contrast elsewhere, even among most of our 'Five Eyes' partners.

Maybe whistling in a dark corner, but the issue of getting the balance right between secrecy and disclosure deserves more discussion than it has received so far.

Spying and surveillance
So far the public response here to the Snowden leaks is the familiar 'in line with longstanding practice we don't comment on intelligence matters.' With fingers crossed things can't get worse in our relations with Indonesia, and biding our time until the International Court rules on the case brought by Timor Leste. 
(Raoul Heinrichs of the ANU writing in The Canberra Times suggests something completely different:"One option may be to pre-emptively come clean on the damaging material we know Snowden possesses. That may sound a bit like committing suicide for fear of death, and it would be painful and embarrassing in the short-term. But the alternative is to cede the initiative, to stay on the back foot while Snowden's leaks are drawn out over months or even years and timed to maximise damage.")

Closer to home the government has had little or nothing to say about PRISM and reports last year about collection of phone and internet data from other countries by the NSA in accordance with deals with organisations like Telstra, as revealed by the Washington Post.

It goes without saying that surveillance and intelligence gathering are both necessary and important and that there are strong and legitimate reasons for not being completely open about such things.

But that doesn't mean silence. As President Obama said:
" ..there is an inevitable bias not only within the intelligence community, but among all of us who are responsible for national security, to collect more information about the world, not less. So in the absence of institutional requirements for regular debate -- and oversight that is public, as well as private or classified -- the danger of government overreach becomes more acute. And this is particularly true when surveillance technology and our reliance on digital information is evolving much faster than our laws."
He outlined in that speech steps to rein in some intelligence gathering activities as well.

(US) Director of National Intelligence James Clapper later told the Senate Intelligence Committee 
"The major takeaway for us, certainly for me, from the past several months is that we must lean in the direction of transparency, wherever and whenever we can.."
In Europe German Chancellor Merkel continues to lead a strong response in public to reports of US activities.

Here, well mostly silence.

Neither major party supported an attempt by The Greens Senator Ludlam in December to establish a Select Committee to inquire into electronic surveillance and governance of the Australian Intelligence Community, thus scuppering that idea. With ALP (but not government) support Senator Ludlam did succeed with a motion for a Senate committee to look into the Telecommunications (Interception and Access) Act, something recommended by the ALRC six years ago but not acted upon previously.

Freedom of information
And while FOI will never likely deliver anything of the Snowden variety, this also is an area of contrast.

In Australia all intelligence agencies are exempt entirely.  

In all other 'Five Eyes" countries with the exception of some UK counterparts, intelligence agencies generally are subject to access to information laws.

In the US, the FOI act extends to the NSA and the CIA, the latter proclaiming:
The CIA releases millions of pages of documents each year. Much of this is material of historical significance or personal interest that has been declassified under Executive Order 12958 (a presidential order outlining a uniform system for handling national security information) or the Freedom of Information Act and Privacy Act (statutes which give US citizens access to US government information or US government information about themselves, respectively). The Agency handles thousands of cases each year and maintains the CIA’s FOIA Electronic Reading Room to release this information to the public and to provide guidance for requesting information. Some released information of significant public interest or historical value is also available at the National Archives and Records Administration.  
The same goes for Canada and NZ and in the UK for MI5 (Correction-UK security services are exempt-thanks Andrew) but not MI6 and others.

The Hawke review recommends we keep things the way they are as argued by the Australian Intelligence Community (pdf). Bear with me-mostly in their own words:
this level of protection is vital and necessary; relying only on other exemptions in the act concerning national security, defence or international relations on a case-by-case basis would involve decisions that are potentially subject to internal and external review; this review process removes the authority for decisions from those responsible for the protection of particular documents; this can have implications for the intelligence that foreign partners are willing to share with Australia; decisions on whether the exemptions in these sections apply may be difficult to take; the disclosure of apparently innocuous pieces of information relating to the activities of the AIC could result in damage to Australia’s security; such information can aid in building a detailed picture of Australia’s security and intelligence agencies and their activities and can alert groups, individuals or hostile intelligence agencies to a specific intelligence interest in them; any change to the existing exemptions could have serious implications for our information-sharing arrangements with allies, several of which are treaty-level; the confidence of our allies in our ability to protect information that they share with us remains fundamental to our intelligence sharing arrangements; we need to maintain this confidence; this could also have a bearing on the level of trust they extend to us and the undertakings we can make; it could diminish the level of access to important intelligence on which we rely for coverage of threats to Australia’s national interest...

The review accepted this without any meaningful public discussion and debate.
Australian Information Commissioner Professor McMillan for one isn't convinced. 

You can add quite a few of the rest of us who think blanket exemptions - including for the parliamentary departments - leave large unacceptable holes in the transparency and accountability framework.

The attachment to secrecy isn't just out of concern about current activities. 

The government no doubt at the urging of an intelligence agency or two is currently arguing against disclosure of Australian diplomatic papers and intelligence on Indonesian military operations in East Timor more than 32 years ago. 

Obviously it is a difficult time to disclose what we knew, when we knew and how we knew about the massacre of several hundred East Timorese civilians.But you have to wonder how long is long enough.

A few suitable topics in all this for Attorney General Brandis' debate about freedoms?


  1. Andrew11:59 am

    Hi Peter,

    One tiny correction - MI5 is not covered by the Freedom of Information Act 2000. From the page you linked to: "The Security Service, along with the other security and intelligence agencies, is not subject to the Act and therefore does not process FOIA requests."

    However, it is subject to the Environmental Information Regulations, as are MI6 and GCHQ.

  2. Thanks Andrew- a misread by me now corrected. Cheers.