5 Aug 2014 | Australia, Digital Freedom, News and features, Politics and Society
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A piece of proposed legislation in the senate in Australia is attempting to wrestle with the legacy of the Snowden leaks with potential implications for media freedom.
In late 2013 information was released to the world that revealed the depth and breadth of the covert architecture in place to monitor and harvest personal data. The unprecedented capabilities and actions of surveillance agencies the world over ignited debate around the nature of privacy in our digital age. But the emergence was not manufactured by the security apparatus or by governments; it was the result of leaked information being published by the press.
Now, a new law proposed by Attorney-General, George Brandis, the National Security Legislation Amendment Bill (no.1) outlines a number of reforms to “modernise and improve” Australia’s capabilities to tackle national security threats. If passed, it could have significant implications for Australian media.
The creation of Special Intelligence Operations (SIO) – covert operations that offer limited immunity for its participants to engage in unlawful conduct – as well as the expansion of computer access warrants are among the sweeping reforms contained within the bill.
Further reforms outline new offences for “unauthorised dealings with an intelligence-related record, including copying, transcription, removal and retention”. But as highlighted by publications such as The Guardian, the Australian Lawyers Alliance (ALA) and members of the opposition, including Greens Senator Scott Ludlam, the bill opens up the possibility for criminal culpability to lie beyond the security operatives dealing with intelligence-related records, to journalists and media outlets who report on information they receive about SIOs. The bill’s explanatory memorandum states that the offence applies to:
“[D]isclosures by any person, including participants in an SIO, other persons to whom information about an SIO has been communicated in an official capacity, and persons who are the recipients of an unauthorised disclosure of information, should they engage in any subsequent disclosure.”
The transcript of the bill’s second reading demonstrates Brandis’s opinion of Snowden, dismissing him as a “so-called ‘trusted insider’” (he has previously referred to the NSA whistle-blower as an “American traitor”). But while he has stated that the bill is not intended to threaten media outlets or limit media freedom, the wording of the bill has set alarm bells ringing. Quoted in The Guardian, ALA spokesperson Greg Barns stated that this bill “takes the Snowden clause and makes it a Snowden/Assange/Guardian/New York Times clause.”
He goes further, explaining how the structure of approving SIOs, threatens media coverage: “ASIO [Australian Security Intelligence Organisation] could secretly declare many future cases to be special intelligence operations. This would trigger the option to prosecute journalists who subsequently discover and report on aspects of these operations.” This lack of clarity in the wording of the bill, as well as the limited oversight as to how the bill can be used – political appointees have the final say – sets a precedent for potential restrictions on media freedom both in Australia and, as a template for action, globally.
The size and scale of the surveillance network, involving governments worldwide, most notably the “five eyes” countries, the US, UK, Canada, New Zealand and Australia raises uncomfortable questions, with no forthcoming answers. The reforms proposed by Brandis seem to suggest that the best way of satisfying these questions is to ensure they are not asked in the first place.
Restricted by inadequate whistle-blower protections, due in part to his status as a private contractor, as well as the national security implications of the leaked documents, reaching out to the media provided to be the sole outlet for Ed Snowden. But it seems now that it could be the media who will be punished for such inadequate protections.
After two readings in the Senate, the bill is poised to be debated in September. And although Brandis has set his sights elsewhere, having mentioned data retention in an interview to ABC, the precedent set by Australia, were this bill to pass, could resonate throughout the world. Scott Ludlam outlined his concern: “I can’t see anything that conditions it or carves out any public interest disclosures. I can’t see anything that would protect journalists.”
This concern does not seem to be shared across the political spectrum. The Australian Prime Minister, Tony Abbott called on journalists for a “sense of responsibility, a sense of national interest”, and the Liberal senator, Cory Bernardi went further by stating that “we need to make sure the press are free to report within the constraints of what is in, I’d say, the national interest”.
Would protecting national interests include the refusal to publish information surrounding the allegations that the Defence Signals Directorate, or DSD, (now called the Australian Signals Directorate) attempted to monitor the calls of the Indonesian president, his wife and senior politicians? What about the DSD’s desire to share harvested online data (or “unminimised” metadata) with other governments without any privacy restraints?
If decisions such as these are left to those who define the role of the press as one of propagating national interests, then the freedom that Bernadi speaks of is surely no freedom at all.
This article was published on August 5, 2014 at indexoncensorship.org
19 Feb 2014 | Asia and Pacific, Australia, Digital Freedom, News and features
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When will Australian governments leave the internet alone? Successive governments have shown an inability to allow Australians to go about the business of using the web and browsing at will. Under previous Labor governments, an obsession grew about the need for a mandatory internet filter system. The system would have screened out sites falling into the “Refused Classification” category. Internet activists and the political opposition guffawed at the suggestion. It was deemed excessive and unworkable.
Australia’s new attorney-general, the prickly George Brandis, claims to be interested in freedoms. He certainly spends time talking about it, having established the new office of “Freedom Commissioner” and claiming that the political left has lost sight of traditional civil rights in favour of select, marginal entitlements. His appointee to the position, Tim Wilson of the libertarian Institute of Public Affairs, is meant to signal a policy shift.
Such a move does little to suggest how actual “freedoms” are going to be protected, let alone promoted. Australia’s legislative regime on rights, in the absence of a constitutionally protected bill of rights, is a quilt work of regulations. These are, as ever, the subject of parliamentary change.
When it comes to internet freedoms, Brandis shows a slightly different suspicion of its workings than his predecessors. But in targeting a form of behaviour he cannot accept, he proves to be on familiar ground. The focus here is not morally righteous in the manner of the pornography filterers, but it is righteous in the sense of protecting financial and economic rights. “The illegal downloading of Australian films online is a form of theft.” Both views share a common strand: a desire to circumscribe the way the net, and information, is used.
Before an audience at the Australian Digital Alliance copyright forum last week, Brandis made mention of how he might go about this. The government will consider various legal means to provide a “legal incentive” for ISPs to collaborate with copyright owners to combat infringements. “This may include looking carefully at the merits of a scheme whereby ISPs are required to issue graduated warnings to consumers who are using websites to facilitate piracy.”
A three-strikes system is being pushed, part of a global drive by developed countries to exert greater control over internet content. France, New Zealand, the United States and Britain are all in the stages of implementing such a program. Users of Australia’s broadband system who allegedly download pirated content will be warned before authorities intervene. This can involve threats of discontinuation from the use of the internet after three warnings. So far, owners of content in Australia have been pressing the government to use a warning system short of disconnection.
The effects of this have already been outlined in some detail. Internet service providers such as iiNet and Optus claim that such a policy move will shift the onus on them to police content. That is Brandis’ suggestion: to convert ISPs into cyber policing outfits that will remove websites hosting “illegitimate” material, thereby restraining downloads by customers.
A few points are worth mentioning. The first is how accountability for infringements can be attributed to an ISP. A ruling by the Australian High Court on the liability of an ISP for allowing the downloading of infringing content is instructive. In 2012, the court unanimously found in a case mounted by 34 studios and television companies against iiNet that the ISP was not liable for authorising copyright infringement.
Roadshow Films v iiNet proved to be a global test case on illegal downloads. It found that iiNet did not have direct power to prevent infringements given its lack of control over the BitTorrent protocol. The only way to prevent violations would have been excessive: eliminating a customer’s Internet access altogether, which would also prevent legitimate uses of it. Indifference to cases of infringement was not the same as authorisation of it. And expecting iiNet to do what the plaintiffs wanted would have resulted in heavy expense, inconvenience and liability for terminating customer accounts.
The other point to make is that such graduated systems are set to fail even as they unduly burden the industry. The experiences in France, New Zealand and the UK have shown them to be counterproductive. Steve Dalby, chief regulatory officer of iiNet, forcefully argues that content should be made available via a system of timely release using such streaming services as Netflix and Hulu. “It can’t be a coincidence that graduated response doesn’t work anywhere else in the world, and making content available in a timely fashion in the US market does work.”
Such suggestions by Brandis cast light on preliminary moves on the part of Australia to import American models of intellectual property law into the domestic system. Australia has been the least disagreeable of the countries involved in negotiating the Trans-Pacific Partnership Agreement with the United States, which contains a substantive chapter on intellectual property.
The intellectual property chapter of the secretly negotiated agreement, obtained by WikiLeaks, suggests the extent the TPP will control the way “protected” content, be it technology, medicine and publishing, will be controlled. Mandatory removals and targeting copyright infringements are fundamental to the changes. The main investors in such an arrangement are US companies who will seek, through the legal regulations in other countries, to control the release of protected material. Aspects of the contentious Digital Millennium Copyright Act have found their way into the agreement.
While the interests of copyright are important to consider, the tendency to control the global Internet via an internationalised copyright regime that coopts ISPs into the role of monitors serves no useful role in preventing infringements. This has the effect of turning a provider of such services into a security service for corporate rights. But it is a trend proving irresistible to all governments, especially those in industrial countries.
This article was posted on February 19, 2014 at indexoncensorship.org
15 Jan 2014 | Europe and Central Asia, European Union, Index Reports, News and features, Politics and Society
This article is part of a series based on our report, Time to Step Up: The EU and freedom of expression
Beyond its near neighbourhood, the EU works to promote freedom of expression in the wider world. To promote freedom of expression and other human rights, the EU has 30 ongoing human rights dialogues with supranational bodies, but also large economic powers such as China.
The EU and freedom of expression in China
The focus of the EU’s relationship with China has been primarily on economic development and trade cooperation. Within China some commentators believe that the tough public noises made by the institutions of the EU to the Chinese government raising concerns over human rights violations are a cynical ploy so that EU nations can continue to put financial interests first as they invest and develop trade with the country. It is certainly the case that the member states place different levels of importance on human rights in their bilateral relationships with China than they do in their relations with Italy, Portugal, Romania and Latvia. With China, member states are often slow to push the importance of human rights in their dialogue with the country. The institutions of the European Union, on the other hand, have formalised a human rights dialogue with China, albeit with little in the way of tangible results.
The EU has a Strategic Partnership with China. This partnership includes a political dialogue on human rights and freedom of the media on a reciprocal basis.[1] It is difficult to see how effective this dialogue is and whether in its present form it should continue. The EU-China human rights dialogue, now 14 years old, has delivered no tangible results.The EU-China Country Strategic Paper (CSP) 2007-2013 on the European Commission’s strategy, budget and priorities for spending aid in China only refers broadly to “human rights”. Neither human rights nor access to freedom of expression are EU priorities in the latest Multiannual Indicative Programme and no money is allocated to programmes to promote freedom of expression in China. The CSP also contains concerning statements such as the following:
“Despite these restrictions [to human rights], most people in China now enjoy greater freedom than at any other time in the past century, and their opportunities in society have increased in many ways.”[2]
Even though the dialogues have not been effective, the institutions of the EU have become more vocal on human rights violations in China in recent years. For instance, it included human rights defenders, including Ai Weiwei, at the EU Nobel Prize event in Beijing. The Chinese foreign ministry responded by throwing an early New Year’s banquet the same evening to reduce the number of attendees to the EU event. When Ai Weiwei was arrested in 2011, the High Representative for Foreign Affairs Catherine Ashton issued a statement in which she expressed her concerns at the deterioration of the human rights situation in China and called for the unconditional release of all political prisoners detained for exercising their right to freedom of expression.[3] The European Parliament has also recently been vocal in supporting human rights in China. In December 2012, it adopted a resolution in which MEPs denounced the repression of “the exercise of the rights to freedom of expression, association and assembly, press freedom and the right to join a trade union” in China. They criticised new laws that facilitate “the control and censorship of the internet by Chinese authorities”, concluding that “there is therefore no longer any real limit on censorship or persecution”. Broadly, within human rights groups there are concerns that the situation regarding human rights in China is less on the agenda at international bodies such as the Human Rights Council[4] than it should be for a country with nearly 20% of the world’s population, feeding a perception that China seems “untouchable”. In a report on China and the International Human Rights System, Chatham House quotes a senior European diplomat in Geneva, who argues “no one would dare” table a resolution on China at the HRC with another diplomat, adding the Chinese government has “managed to dissuade states from action – now people don’t even raise it”. A small number of diplomats have expressed the view that more should be done to increase the focus on China in the Council, especially given the perceived ineffectiveness of the bilateral human rights dialogues. While EU member states have shied away from direct condemnation of China, they have raised freedom of expression abuses during HRC General Debates.
The Common Foreign and Security Policy and human rights dialogues
The EU’s Common Foreign and Security Policy (CFSP) is the agreed foreign policy of the European Union. The Maastricht Treaty of 1993 allowed the EU to develop this policy, which is mandated through Article 21 of the Treaty of the European Union to protect the security of the EU, promote peace, international security and co-operation and to consolidate democracy, the rule of law and respect for human rights and fundamental freedom. Unlike most EU policies, the CFSP is subject to unanimous consensus, with majority voting only applying to the implementation of policies already agreed by all member states. As member states still value their own independent foreign policies, the CFSP remains relatively weak, and so a policy that effectively and unanimously protects and promotes rights is at best still a work in progress. The policies that are agreed as part of the Common Foreign and Security Policy therefore be useful in protecting and defending human rights if implemented with support. There are two key parts of the CFSP strategy to promote freedom of expression, the External Action Service guidelines on freedom of expression and the human rights dialogues. The latter has been of variable effectiveness, and so civil society has higher hopes for the effectiveness of the former.
The External Action Service freedom of expression guidelines
As part of its 2012 Action Plan on Human Rights and Democracy, the EU is working on new guidelines for online and offline freedom of expression, due by the end of 2013. These guidelines could provide the basis for more active external policies and perhaps encourage a more strategic approach to the promotion of human rights in light of the criticism made of the human rights dialogues.
The guidelines will be of particular use when the EU makes human rights impact assessments of third countries and in determining conditionality on trade and aid with non-EU states. A draft of the guidelines has been published, but as these guidelines will be a Common Foreign and Security Policy document, there will be no full and open consultation for civil society to comment on the draft. This is unfortunate and somewhat ironic given the guidelines’ focus on free expression. The Council should open this process to wider debate and discussion.
The draft guidelines place too much emphasis on the rights of the media and not enough emphasis on the role of ordinary citizens and their ability to exercise the right to free speech. It is important the guidelines deal with a number of pressing international threats to freedom of expression, including state surveillance, the impact of criminal defamation, restrictions on the registration of associations and public protest and impunity against human right defenders. Although externally facing, the freedom of expression guidelines may also be useful in indirectly establishing benchmarks for internal EU policies. It would clearly undermine the impact of the guidelines on third parties if the domestic policies of EU member states contradict the EU’s external guidelines.
Human rights dialogues
Another one of the key processes for the EU to raise concerns over states’ infringement of the right to freedom of expression as part of the CFSP are the human rights dialogues. The guidelines on the dialogues make explicit reference to the promotion of freedom of expression. The EU runs 30 human rights dialogues across the globe, with the key dialogues taking place in China (as above), Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan, Uzbekistan, Georgia and Belarus. It also has a dialogues with the African Union, all enlargement candidate countries (Croatia, the former Yugoslav republic of Macedonia and Turkey), as well as consultations with Canada, Japan, New Zealand, the United States and Russia. The dialogue with Iran was suspended in 2006. Beyond this, there are also “local dialogues” at a lower level, with the Heads of EU missions, with Cambodia, Bangladesh, Egypt, India, Israel, Jordan, Laos, Lebanon, Morocco, Pakistan, the Palestinian Authority, Sri Lanka, Tunisia and Vietnam. In November 2008, the Council decided to initiate and enhance the EU human rights dialogues with a number of Latin American countries.
It is argued that because too many of the dialogues are held behind closed doors, with little civil society participation with only low-level EU officials, it has allowed the dialogues to lose their importance as a tool. Others contend that the dialogues allow the leaders of EU member states and Commissioners to silo human rights solely into the dialogues, giving them the opportunity to engage with authoritarian regimes on trade without raising specific human rights objections.
While in China and Central Asia the EU’s human rights dialogues have had little impact, elsewhere the dialogues are more welcome. The EU and Brazil established a Strategic Partnership in 2007. Within this framework, a Joint Action Plan (JAP) covering the period 2012-2014 was endorsed by the EU and Brazil, in which they both committed to “promoting human rights and democracy and upholding international justice”. To this end, Brazil and the EU hold regular human rights consultations that assess the main challenges concerning respect for human rights, democratic principles and the rule of law; advance human rights and democracy policy priorities and identify and coordinate policy positions on relevant issues in international fora. While at present, freedom of expression has not been prioritised as a key human rights challenge in this dialogue, the dialogues are seen by both partners as of mutual benefit. It is notable that in the EU-Brazil dialogue both partners come to the dialogues with different human rights concerns, but as democracies. With criticism of the effectiveness and openness of the dialogues, the EU should look again at how the dialogues fit into the overall strategy of the Union and its member states in the promotion of human rights with third countries and assess whether the dialogues can be improved.
[1] It covers both press freedom for the Chinese media in Europe and also press freedom for European media in China.
[2] China Strategy Paper 2007-2013, Annexes, ‘the political situation’, p. 11
[3] “I urge China to release all of those who have been detained for exercising their universally recognised right to freedom of expression.”
[4] Interview with European diplomat, February 2013.
14 Nov 2013 | Asia and Pacific, News and features
President Rajapaksa claims his hands are when it comes to free speech. (Image Chamila Karunarathne/Demotix)
A Channel 4 News team was yesterday barred from travelling to the north of Sri Lanka by a group of angry protesters blocking their train. The pro-government crowd claimed that the reporters were getting money from the Tamil Tigers (LTTE). The crew were eventually escorted out by the police.
Channel 4 News editor Ben De Pear was live tweeting the ordeal. “It seems it is mob rule in Sri Lanka, albeit orchestrated by the authorities to prevent free press access to the north of Sri Lanka,” he posted at the time.
Channel 4 has angered the government of President Mahinda Rajapaksa with a series of documentaries and reports on the alleged of death of some 40,000 Tamils – the figured comes from the UN – in the last weeks of the country’s 30 year long civil war, which ended in May 2009. They have also covered subsequent allegations of human rights abuses like torture and disappearances, levelled at security forces. But De Pear tweeted Rajapaksa had said Sri Lanka is a free country, where you can “go anywhere”.
This comes on the day before the start of the Commonwealth Heads of Government Meeting in the capital Colombo. The biannual summit has been marred by coverage of the continuing poor state of fundamental human rights in the country, with Commonwealth members like India and Canada boycotting in protest. Britain, however, will be attending, with Prime Minister David Cameron stating it is better to confront the country than isolate it. Unlike MPs from Australia and New Zealand on a human rights fact finding mission, who were on Sunday detained and deported, he will presumably be able to enter the country. And with human rights not even on agenda to be formally discussed during the meeting, there are a number of recent issues the Prime Minister can raise in his “serious questions” to President Rajapaksa.
While what has happened to Channel 4 is unacceptable, it is nothing compared to the conditions local journalists work under. Since the murder of Lasantha Wickrematunge in 2009 and the disappearance of cartoonist and columnist Prageeth Eknelygoda in 2010 – neither properly investigated – the country’s media face ongoing repression under the Rajapaksa regime. While freedom of expression is protected in the constitution, little is done to protect it in practise. Intimidation is rife, with journalists attacked and beaten and printing presses destroyed. A recent example was the two-hour long raid on the home of editor and columnist Mandana Ismail Abeywickrema in August. She recently started a journalists’ trade union. Critical reporters have previously been labelled “traitors” by authorities, and at least 26 are currently in exile.
The regime also seems to have a problem with the right to free assembly and civil society gatherings. The vaguely worded 1979 Prevention of Terrorism Act is often used in government crackdowns. Only yesterday, families of disappeared people were barred by the military traveling to a candlelight vigil at an alternative Commonwealth meeting organised by human rights groups in Colombo. One of the conveners of the Alternative People’s Forum, Dr Nimalka Fernando, which is boycotting all official Commonwealth events, was subject to on-air threats from the Chairman of the Sri Lanka Broadcasting Corporation – a state owned radio station.
There is also the case of continuous allegations of torture and forced disappearances levelled at at government and security forces. A recent BBC report by Fergal Keane suggested that while repression has been taking place under successive governments, activists say the situation has worsened under the current regime. A priest who helps victims of torture in the country told the BBC “those who criticise or question the government are being silenced in a very brutal way”.
The government has denied all allegations of human rights abuses, with President Rajapaksa saying today that they ended the killing by defeating the Tamil Tigers. But with the Commonwealth “committed to the Universal Declaration of Human Rights” leaders have a responsibility to hold the Sri Lankan government to account. Hopefully David Cameron’s questions will indeed be serious.
