While Attorney-General George Brandis’ cringeworthy interview with David Speers has generated heated criticism of his understanding of metadata, “surfing”, and the internet in general, this is only the latest in a long line of instances where those in positions of legal authority have revealed their ignorance when it comes to the technologies they are dealing with.
It has been a rough week for Brandis, with Communications Minister Malcolm Turnbull publicly contradicting his preferred approach to internet piracy and Prime Minister Tony Abbott today announcing the government’s retreat on changes to section 18C of the Racial Discrimination Act. These changes were Brandis’ cause célèbre but, ironically, the decision to back down was taken in order to more effectively advocate for the data retention laws his Sky News interview later turned into a Twitter laughing-stock.
With the common thread of an apparent lack of understanding of the 21st Century, its culture, and associated technology, it is easy to ridicule Brandis on each of these policies. Unfortunately he isn’t the first, or even the most significant, figure to take such an approach to internet regulation. Some may remember former Communications Minister Stephen Conroy and his evolving (and ultimately ditched) web filter, followed by then Shadow Communications Minister Turnbull’s short-lived sequel, Web Filter 2: Election Boogaloo. Although these filter policies aren’t necessarily directly comparable to data retention for counter-terrorism purposes, they highlight a distinct ignorance of the value many now place on web access.
Across the Pacific, the judges sitting on the US Supreme Court bench – tasked with making decisions on some of the world’s most complex and vexed legal debates over technology, with the potential for tremendous impact on innovation and privacy – haven’t really “gotten to” email yet, let alone social media. The question of how much detailed knowledge those making policy and legal decisions must have is a fair one, as we can’t expect all decision-makers to be experts on all topics, but with the internet and associated technology increasingly becoming fundamental to global economies, cultures, and societies, this level of abstraction is disconcerting. Closer to home, a senior Australian public servant only last year admitted that they were not familiar with Tor.
This would be fine (who knows what Tor is, anyway?) if it weren’t for the fact that the public servant in question was actually a top advisor on national cyber-security policy and that Tor is essentially a tool used to browse the internet anonymously. If you’re thinking that this sounds like a great idea if you’re involved in illegal activity, or even terrorism, you’d be right. The problem, then, is not only that Tor is unknown to senior officials who really should know what it is, but also that when they do figure it out the impulse is to flag its users. There is a distinct difference between acknowledging the problems such a tool presents and assuming that its users are guilty. As a bonus, Tor was initially developed by the US Naval Research Laboratory as a way to protect government communications and received funding from the State Department and Department of Defense.
So what can we expect from lawmakers on technology and internet policy?
An attempt to understand the basic theory, social significance, and development work behind this technology would be a good start. It is fair that many in positions of authority are not across all aspects of online behaviour – as a Gen Y who studied software design at high school, I’m still constantly playing catch up – however, it isn’t good enough to hide behind generational ignorance when the internet is so essential to public and private life.
Whatever your opinion may be of him, George Brandis is an intelligent man. He is intrigued and driven by philosophical and legal debate. His and Tony Abbott’s confusion on the difference between internet activity and what websites are being visited is not good enough. It is one thing to disagree on the limits of privacy when it comes to national security; it is quite another to fail to take the time to seek a basic understanding of what these limits might actually mean. This applies not just to Brandis and the Prime Minister, but to all those attempting to grapple with the implications of online technology for public policy.
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