New data access bill shows we need to get serious about privacy with independent oversight of the law



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MICK TSIKAS/AAP

Greg Austin, UNSW

The federal government today announced its proposed legislation to give law enforcement agencies yet more avenues to reach into our private lives through access to our personal communications and data. This never-ending story of parliamentary bills defies logic, and is not offering the necessary oversight and protections.

The trend has been led by Prime Minister Malcolm Turnbull, with help from an ever-growing number of security ministers and senior officials. Could it be that the proliferation of government security roles is a self-perpetuating industry leading to ever more government powers for privacy encroachment?

That definitely appears to be the case.

Striking the right balance between data access and privacy is a tricky problem, but the government’s current approach is doing little to solve it. We need better oversight of law enforcement access to our data to ensure it complies with privacy principles and actually results in convictions. That might require setting up an independent judicial review mechanism to report outcomes on an annual basis.




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Where is the accountability?

The succession of data access legislation in the Australian parliament is fast becoming a Mad Hatter’s tea party – a characterisation justified by the increasingly unproductive public conversations between the government on one hand, and legal specialists and rights advocates on the other.

If the government says it needs new laws to tackle “terrorism and paedophilia”, then the rule seems to be that other side will be criticised for bringing up “privacy protection”. The federal opposition has surrendered any meaningful resistance to this parade of legislation.

Rights advocates have been backed into a corner by being forced to repeat their concerns over each new piece of legislation while neither they nor the government, nor our Privacy Commissioner, and all the other “commissioners”, are called to account on fundamental matters of principle.

Speaking of the commissioner class, Australia just got a new one last week: the Data Commissioner. Strangely, the impetus for this appointment came from the Productivity Commission.

The post has three purposes:

  1. to promote greater use of data,
  2. to drive economic benefits and innovation from greater use of data, and
  3. to build trust with the Australian community about the government’s use of data.

The problem with this logic is that purposes one and two can only be distinguished by the seemingly catch-all character of the first: that if data exists it must be used.

Leaving aside that minor point, the notion that the government needs to build trust with the Australian community on data policy speaks for itself.

National Privacy Principles fall short

There is near universal agreement that the government is managing this issue badly, from the census data management issue to the “My Health Record” debacle. The growing commissioner class has not been much help.

Australia does have personal data protection principles, you may be surprised to learn. They are called “Privacy Principles”. You may be even more surprised to learn that the rights offered in these principles exist only up to the point where any enforcement arm of government wants the data.




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So it seems that Australians have to rely on the leadership of the Productivity Commission (for economic policy) to guarantee our rights in cyber space, at least when it comes to our personal data.

Better oversight is required

There is another approach to reconciling citizens’ interests in privacy protection with legitimate and important enforcement needs against terrorists and paedophiles: that is judicial review.

The government argues, unconvincingly according to police sources, that this process adequately protects citizens by requiring law enforcement to obtain court-ordered warrants to access information. The record in some other countries suggests otherwise, with judges almost always waving through any application from enforcement authorities, according to official US data.

There is a second level of judicial review open to the government. This is to set up an independent judicial review mechanism that is obliged to annually review all instances of government access to personal data under warrant, and to report on the virtues or shortcomings of that access against enforcement outcomes and privacy principles.

There are two essential features of this proposal. First, the reviewing officer is a judge and not a public servant (the “commissioner class”). Second, the scope of the function is review of the daily operation of the intrusive laws, not just the post-facto examination of notorious cases of data breaches.

It would take a lengthy academic volume to make the case for judicial review of this kind. But it can be defended simply on economic grounds: such a review process would shine light on the efficiency of police investigations.

According to data released by the UK government, the overwhelming share of arrests for terrorist offences in the UK (many based on court-approved warrants for access to private data) do not result in convictions. There were 37 convictions out of 441 arrests for terrorist-related offences in the 12 months up to March 2018.




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The Turnbull government deserves credit for its recognition of the values of legal review. Its continuing commitment to posts such as the National Security Legislation Monitor – and the appointment of a high-profile barrister to such a post – is evidence of that.

But somewhere along the way, the administration of data privacy is falling foul of a growing bureaucratic mess.

The ConversationThe only way to bring order to the chaos is through robust accountability; and the only people with the authority or legitimacy in our political system to do that are probably judges who are independent of the government.

Greg Austin, Professor UNSW Canberra Cyber, UNSW

This article was originally published on The Conversation. Read the original article.

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TURKEY: ALLEGED ‘MIDDLEMAN’ IN MALATYA MURDERS A NO-SHOW


State fails to set aside funds to transport key witness to hearing.

MALATYA, Turkey, June 25 (Compass Direct News) – A suspected “middleman” between the alleged masterminds and young executors in the stabbing murders of three Christians here failed to appear at a hearing on Friday (June 19) because of a procedural error.

The state prosecutor’s office failed to set aside funds to transport Varol Bulent Aral to the southeastern city of Malatya from Istanbul, where he is held, the court announced. Aral is the second suspected middleman connecting the five young murderers to “deep state” masterminds who allegedly plotted to kill Turkish Christians Necati Aydin and Ugur Yuksel and German Christian Tilmann Geske.

The three Christians were bound and tortured before they were murdered on April 18, 2007 at Zirve Publishing Co., where they worked. Suspects Salih Guler, Cuma Ozdemir, Hamit Ceker, Abuzer Yildirim and alleged ring-leader Emre Gunaydin were caught at the scene of the crime.

While in prison, Gunaydin testified to the state prosecutor that Aral, a journalist allegedly attached to a far-reaching political conspiracy known as Ergenekon, had contacted him and instructed him to carry out the murders. Gunaydin had also testified that Huseyin Yelki, who worked as a volunteer at the Zirve office, had planned details of the crime with him.

The court heard Yelki’s testimony in the last two hearings, but judges could not arrive at conclusive evidence connecting him to the murders. At the May hearing, Gunaydin retracted his statement that he and Yelki met to strategize before the murders. An order last month to investigate Yelki’s bank accounts for links to suspicious activity has yielded no new information, judges stated at the last hearing. He is still obligated, however, to attend every court hearing.

At a May hearing, the court also requested a list of people who have visited Gunaydin since the beginning of this year, suspecting that he may be under pressure to retract statements he has made implicating middlemen in the murders. The court is still evaluating the list of visitors it received.

Gunaydin’s girlfriend, Burcu Polat, was also expected to testify on Friday but did not appear. The court ordered Polat to appear at the next hearing and is petitioning the prosecutor’s office to funnel the necessary funds for Aral’s transportation from Istanbul to Malatya.

Erdal Dogan, one of a team of plaintiff lawyers in the Malatya case, told reporters after the short hearing that Aral’s absence resulted from a great oversight on the part of the Justice Ministry.

“They didn’t bring the witness due to a lack of funds,” said Dogan. “That the Justice Ministry knew the court date and didn’t put money aside for the witness to come is a tragic state of affairs.”

When asked whether the case will be joined to the ongoing Ergenekon court hearings, Dogan said the court is still researching possible links between the Malatya murders and those of Armenian Christian and newspaper editor Hrant Dink, who was killed three months before the men in Malatya, and Catholic priest Andrea Santoro, who was slain in the Black Sea coastal town of Trabzon in February 2006.

Link with ‘Insulting Turkishness’ Trial?

In Silivri, the case against Turkish Christian converts Hakan Tastan and Turan Topal for “insulting Turkishness” under controversial Article 301 continues to drag on two years after they were charged – leading the defendants to wonder if the “deep state” is also behind their ordeal.

Tastan and Topal were charged after speaking about their faith. The decision to try them under the disputed article came after three young men – Fatih Kose, Alper Eksi and Oguz Yilmaz – stated that Topal and Tastan were conducting missionary activities in an effort to show that Islam is a primitive, fictitious religion that results in terrorism and to portray Turks as a “cursed people.”

Prosecutors have yet to produce any evidence indicating the defendants described Islam in these terms. Turkey’s constitution grants all citizens freedom to choose, be educated in and communicate their religion, making missionary activities legal.

At a June 24, 2008 hearing, two witnesses for the prosecution declared they did not know the defendants and had never seen them before facing them in the courtroom. Several witnesses – including one of the original complainants, Kose – have failed to show up on various trial dates.

On May 28 the court, though yet again reaching no conclusions, ordered five witnesses to appear at the next hearing, set for Oct. 15.

“This is malicious,” Topal told Compass. “Every time they call someone else, find something new to accuse us of. They have called everyone, and this time they’re calling people from the judiciary… claiming that we met with them. It just keeps going on.”

Three of the five lawyers ordered to appear at the next hearing are workers in the country’s judicial system.

“If they would just make up their mind and at least pronounce us guilty, we would have a chance to take the case to the European Court of Human Rights, but now there’s just uncertainty,” said Topal.

He said he and Tastan are convinced that their trial is a set-up from Turkey’s “deep state” and is connected to the murders of the Christians in Malatya.

“In my mind, our court case and these murders were orchestrated,” Tastan said.

He described how, after they came out of a hearing held the day the three Christians were murdered in Malatya, members of the press and others gathered outside the courthouse in Silivri.

“Among the crowd, people yelled out to us, ‘We will cut you up too. We will kill you too,’” he said. “So when did they gather these people? When did they come? When did they learn of the event to know to yell at us if there wasn’t a connection between the two cases?”

Two key figures pressing the Article 301 charges and promoting sensational media coverage of the Silivri trial are now jailed themselves, unable to attend the hearings. Both ultranationalist lawyer Kemal Kerincsiz and spokesperson Sevgi Erenerol of the Turkish Orthodox Church – a Turkish nationalist denomination with no significant following – are accused of playing leading roles in Ergenekon, an ultranationalist cabal of retired generals, politicians, journalists and mafia members under investigation for conspiracy to overthrow the government.

“I think that it was the same people who orchestrated this,” said Tastan, referring to Ergenekon.

Report from Compass Direct News

UK TRADITIONAL WING OF ANGLICANS TO LEAVE CHURCH OF ENGLAND


There are effectively two religions being practised in the Church of England, a leader of the evangelical or traditionally Protestant wing of the Anglican Church said this week, reports Hilary White, LifeSiteNews.com. On one side are the theologically ultra-liberal leadership who support not only women’s ordination but homosexuality, while on the other are those who hold to traditionally Christian and biblical principles.

The Rev. Rod Thomas was speaking to the annual conference of the Reform movement in London this week. Thomas said that at least twenty-five parishes, representing up to 3000 practising Anglicans in the UK, are already seeking alternate oversight from bishops not associated with the ultra-liberal theological trends that dominate the Church of England.

“We are actively going to take forward the agenda of alternative episcopal oversight. We are no longer able to sit back and wait to see what happens,” Rev. Thomas said.

“The most radical scenario which I don’t discount, but neither am I saying we are pressing for, is where you have a shortlist of names and ask overseas persons to consecrate them so they cater for individuals in this country.”

The Reform movement was founded in 1993 to oppose the ordination of women as clergy in the Church of England and represents the established Church’s traditional protestant or “evangelical” wing.

Thomas urged support from Reform Anglicans for the Fellowship of the Confessing Anglicans, a body set up by the bishops who attended this summer’s Global Anglican Futures Conference in Jerusalem.

Thomas said that the group believes in remaining within an “an Episcopal church for good theological and pragmatic reasons.”

“However, where the teaching and actions of a bishop promote an unbiblical way of thinking, then we simply have to look elsewhere for a bishop.

“If we fail to do this then our congregations will not see us taking New Testament teaching seriously and the process of accommodation will continue,” he said.

This summer’s Lambeth Conference issued instructions for Anglican congregations not to continue to seek “cross-border” oversight from bishops outside traditional Anglican episcopal boundaries.

Meanwhile traditionally Christian congregations in the US are winning their cases in courts to retain their parish properties while at the same time removing themselves from oversight by the Episcopal Church of the US (ECUSA). In the Diocese of Virginia this week, a judge ruled that a parcel of land given by Christ the Redeemer Episcopal Church was properly deeded to Truro Church, a traditional church, and that the diocese has no claim to it. The diocese has recently lost three times in lawsuits to retain some dozen church properties.

Conservative Anglican writer and commentator David Virtue wrote, “The Anglican Communion is coming apart at the seams while Dr. Rowan Williams tells a London reporter that he admires the atheist [Dr. Richard] Dawkins.” Dr. Williams, the Anglican Archbishop of Canterbury, was reported to have recently said about Dawkins, “There’s something about his swashbuckling side which is endearing. I invited atheism’s high priest and his wife to a Lambeth Palace party last year. They were absolutely delightful.”

Report from the Christian Telegraph