Spying on Australians

This came to my attention through Radio NZ, but has hardly had the attention it deserves

Revealed: Australian spy agency offered to share data about ordinary citizens

• Secret 5-Eyes document shows surveillance partners discussing what information they can pool about their citizens

• DSD indicated it could provide material without some privacy restraints imposed by other countries such as Canada

• Medical, legal or religious information 'not automatically limited'

• Concern that intelligence agency could be 'operating outside its legal mandate'

the Guardian,

2 December, 2013

Australia's surveillance agency offered to share information collected about ordinary Australian citizens with its major intelligence partners, according to a secret 2008 document leaked by the US whistleblower Edward Snowden.

The document shows the partners discussing whether or not to share "medical, legal or religious information", and increases concern that the agency could be operating outside its legal mandate, according to the human rights lawyer Geoffrey Robertson QC.

The Australian intelligence agency, then known as the Defence Signals Directorate (DSD), indicated it could share bulk material without some of the privacy restraints imposed by other countries, such as Canada.

"DSD can share bulk, unselected, unminimised metadata as long as there is no intent to target an Australian national," notes from an intelligence conference say. "Unintentional collection is not viewed as a significant issue."

The agency acknowledged that more substantial interrogation of the material would, however, require a warrant.

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Metadata is the information we all generate whenever we use technology, from the date and time of a phone call to the location from which an email is sent.

"Bulk, unselected, unminimised metadata" means that this data is in its raw state, and nothing has been deleted or redacted in order to protect the privacy of ordinary citizens who might have been caught in the dragnet. Metadata can present a very complete picture of someone's life.

The working document, marked secret, sheds new light on the extent to which intelligence agencies at that time were considering sharing information with foreign surveillance partners, and it provides further confirmation that, to some extent at least, there is warrantless surveillance of Australians' personal metadata.

The DSD joined its four intelligence-sharing partners – the US, Britain, Canada and New Zealand, collectively known as 5-Eyes – to discuss what could and what could not be shared under the different jurisdictions at a meeting hosted by Britain’s GCHQ at its headquarters in Cheltenham on 22-23 April, 2008.

The notes, published today by Guardian Australia, suggest that Australia was open to pooling bulk data that almost certainly includes information about Australian citizens.

Clearly indicating the different attitudes between the intelligence partners, the Canadians insisted that bulk collection could only be shared if information about its citizens was first "minimised”, meaning deleted or removed. The various techniques used in "minimisation" help protect citizens' privacy.

The GCHQ memo taker, reporting on this, said that “bulk, unselected metadata presents too high a risk to share with second parties at this time because of the requirement to ensure that the identities of Canadians or persons in Canada are minimised, but re-evaluation of this stance is ongoing”.

By contrast, DSD, now renamed the Australian Signals Directorate, offered a broader sweep of material to its partners.

DSD offered to share bulk, unselected, unminimised metadata – although there were specific caveats. The note taker at the meeting writes: “However, if a ‘pattern of life’ search detects an Australian then there would be a need to contact DSD and ask them to obtain a ministerial warrant to continue.”

A "pattern of life" search is more detailed one – joining the dots to build up a portrait of an individual’s daily activities.

It is technically possible to strip out the metadata of Australian nationals from bulk collection methods used by the 5-Eyes countries, such as cable taps – ensuring the information is not stored, and so could not be pulled in to searches and investigations by agents.

The Snowden documents reveal Australia’s intelligence services instead offered to leave the data in its raw state.

Australian politicians have insisted that all surveillance undertaken is in accordance with the law.

But Geoffrey Robertson, writing in the Guardian today, says if what was described in the memo took place, this would be a breach of sections eight and 12 of the Intelligence Services Act 2001. The act sets a strict requirement that ministerial authorisation is required if the data of an Australian citizen is involved, and indicates that the citizen must be a "person of interest", such as someone involved in terrorism or organised crime.

The Cheltenham gathering, which appears to have been convened to consider the issues around the burgeoning collection of metadata and to reach common positions, resolved to avoid pre-emptive efforts to categorise various materials and "simply focus on what is shareable in bulk".

The memo flags privacy concerns around the collection of various types of data, but the meeting, according to the record, resolved not to set "automatic limitations" – leaving judgment calls to each country's own agencies.

"Consideration was given as to whether any types of data were prohibited, for example medical, legal, religious or restricted business information, which may be regarded as an intrusion of privacy," the memo says.

"Given the nascent state of many of these data types then no, or limited, precedents have been set with respect to proportionality or propriety, or whether different legal considerations applies to the 'ownership' of this data compared with the communications data that we were more accustomed to handle."

"It was agreed that the conference should not seek to set any automatic limitations, but any such difficult cases would have to be considered by 'owning' agency on a case-by-case basis."

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The document also shows the agencies considering disclosure to "non-intelligence agencies". It says: "Asio and the Australian federal police are currently reviewing how Sigint [signals intelligence] information can be used by non-intelligence agencies."

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The record of the Cheltenham meeting does not indicate whether the activities under discussion in April 2008 progressed to final decisions or specific actions. It appears to be a working draft.

Since Snowden leaked the NSA documents to the Guardian and the Washington Post in May, controversy has raged around the world over revelations that surveillance agencies are collecting information in bulk about ordinary citizens' day-to-day activities, without first getting a warrant.

In Australia, the Greens party and the South Australian independent senator Nick Xenophon have been pursuing questions about the extent to which Australian citizens have been caught up in the dragnet, and the extent of Australian intelligence agencies' involvement.

So far, those questions have largely met with stonewalling, both under the previous Labor government and the new Abbott administration.

Tony Abbott criticises ABC for working with Guardian Australia on spying story

National broadcaster accused of being 'an advertising amplifier' for revelations about bid to tap Indonesian president's phone

the Guardian,

1 December, 2013

Tony Abbott has accused Australia's national broadcaster of acting as an "advertising amplifier for the Guardian" by collaborating on the story that revealed intelligence agencies' attempts to tap the Indonesian president's phone.

The prime minister levelled the criticism at the ABC during an interview with the conservative commentator Andrew Bolt on Sunday, while conceding of that revelation that "plainly it was a story".

Guardian Australia and the ABC jointly revealed on 18 November that Australian spies attempted to listen in on the personal phone calls of the Indonesian president, Susilo Bambang Yudhoyono, and targeted the mobile phones of his wife, senior ministers and confidants.

The story was based on a top-secret document, dated November 2009, supplied by the former US intelligence contractor Edward Snowden. It led to a diplomatic stand-off between Australia and Indonesia, with Yudhoyono demanding a full explanation and then calling for a code of ethics between the two countries surrounding intelligence matters in future.

The ABC's managing director, Mark Scott, told a Senate estimates hearing that Guardian Australia approached the ABC about working in partnership on the story, similar to the Guardian's collaboration with other major publishers over previous leaked documents.

Abbott indicated he would have had no problem with the ABC reporting the story once the Guardian had published but questioned the partnership, which led to a synchronised release. Both media outlets mentioned the collaboration with the other when covering the issue.

"I think it's fair enough for people to question the judgment of the ABC, not in failing to cover the story as it were, because plainly it was a story, but in choosing to act as, if you like, an advertising amplifier for the Guardian," Abbott said on Ten's Bolt Report.

"It was the Guardian's story which the ABC seemed to want to advertise, even though there's not normally advertising on the ABC."

Asked if he would have liked more of the documents to be censored, Abbott said it was up to news organisations to consider what was fit for publication and broadcast.

"They have to make their own judgments but I think people are entitled sometimes to question the judgments news organisations make," Abbott said.

During the interview Bolt told Abbott the ABC was "out of control" and needed a new charter to deliver "some balance". Abbott resisted the call, saying he was "not in the business of making unnecessary enemies" or further inflaming critics.

Although the prime minister sometimes questioned the judgments of individual journalists, programmes and news organisations, he said he was "not in the business of putting anyone into particular camps because my job is to try to be appealing as I can at all times".

Abbott declined to say whether Australia privately assured Indonesia it would not conduct such high-level spying in the future, saying only that he wanted to increase intelligence sharing between the two countries.

"There've been all sorts of conversations at all sorts of levels between Australian and Indonesia over the last week or so and the point that all of us have made, from me down, is that we won't do things to hurt Indonesia, we will do things to help Indonesia."

Abbott said Yudhoyono's response was "very warm and friendly" as both leaders wanted the relationship between the two countries to be as strong as possible. Abbott's initial action after the story was published was to tell parliament that he would not apologise for the spying. Indonesia threatened to stop co-operation on issues such as people smuggling and is now demanding a code of ethics between the two countries.

"I was always happy to speak with the president but I thought it was important for him to digest all the various news reports and do what he thought was best, take what action he thought appropriate, and then of course we responded," Abbott said.

The interview is the second Abbott has granted Bolt since the September election. In the last encounter, published in News Corp publications in October, Abbott described as "complete hogwash" attempts to link the New South Wales bushfires to climate change. That interview also focused on the ABC's conduct.

At a Senate hearing on 19 November Scott argued the spying disclosures were in the public interest, as they raised questions about the nature and extent of intelligence gathering in the digital age, how information was shared and the security of that information.

Scott said parts of the documents were redacted based on advice from Australian authorities and he dismissed any suggestion the release was timed to damage Abbott's political standing. Scott told the hearing Snowden had released a massive volume of documents to the Guardian and it took time to examine all the material. He said he understood Guardian Australia had received the Indonesia spying documents only a short time before publication.

"The Guardian came to us," Scott said. "We worked in partnership with them. We did investigate the story independently and report the story independently." He suggested the ABC was able to offer Guardian Australia reporting depth and a broadcast platform.