Brandis' metadata plan won't stop crime but will crush art

As clickbait phrases go, “metadata retention” is down there with “thumbtack manufacture” and only slightly north of “pictures of my beautiful engagement”. Zzz and, indeed, who cares. It’s as boring as the batshit expelled from a boring bat called Kevin on the boring pages of a whitepaper distributed at a conference on asphalt awareness. Even if you can force yourself to read the boring details of boring metadata, they’re about as intelligible as a streak of fruity guano. No one can tell you what this meaningless thing means. Least of all, the batshit policy’s professional champion, George Brandis.

Our Attorney-General and Minister for the Arts has himself had trouble staying awake when called upon to explain the amendments. “The Australian people are being sleep walked into a system the Attorney-General cannot even articulate,” was how a former police officer described the proposal to ABC Radio  . Quite. “Um” was among the interjections Brandis used to evoke the shape of metadata on Sky News last August.

The thing about “metadata” is that it is, at best, a pseudo category. At worst, it’s an ignorant falsehood evolved by the Attorney-General’s Department under successive governments to make-believe that there is data about data and not just data–your data–itself. The AG would have us trust that all that will be retained is the “wrapper” for our data, or, the envelope that your data comes in and not the letter. But, digital information does not behave like the physical mail. We have been assured that certain elements of our data, such as our browsing history, will not be viewed. This does not mean it will not be stored. And it does not mean that the legislation as it stands does not allow for an infinitely extendable definition of “metadata” and its retrieval. This deathly boring thing is whatever anyone wants to say it is. Um.

Eventually, “um” became the primary response from an electorate drip-fed on bat-poo by a sleepy media rolling over for easy clicks. Why publish the tedious details of a one-size-fits-all warrant that treats every Australian like a criminal suspect when a non-story about a single bowler’s behaviour abroad will provoke a mass orgasm of easy spite? Our news media are eager to shame the law and customs of developing nations. They just ain’t that interested in tearing apart their own.

Crikey’s Bernard Keane is one of the few professional reporters prepared to put his hands repeatedly in the waste of this stinking proposal and sift for solid reason. But, it’s more than past time for the nation’s critics, consumers and producers of arts to sort through the crap as well.

The proposed bill will afflict your art. Stay with me, here, and, please, don’t sleep-walk. Well. Not if you don’t want to submit to the conditions for Approved Art. And if you do wish to submit, what are you doing here? Fuck off and enjoy your censored Norman Lindsay nudes and redacted Ulysses idiotically confident that an environment inimical to creative and political expression will stop the bad people. Never has. Never will.

Arts and entertainment professionals and their supporters knew this in 2004. It was then a Sedition amendment was proposed as part of a suite of anti-terrorism laws by the Howard government. Large rallies and fundraising events played out across the nation within days of the announcement and the National Association for Visual Arts fought powerfully and drearily to consult on legislation that would finally exempt art works from the laws in 2010. A decade ago, artists and their patrons fought against criminalisation without a second thought. Now, along with the rest of the population, we shrug and delude ourselves that data retention laws Won’t Affect Me.


Today, Tony Abbott will deliver an address on national security and when he does, try to listen carefully. We can expect the usual cortege of “death cult”, “Jihadi”, “paedophiles” and those other storybook villains now routinely employed when prime-ministerial approval ratings are taking a nap.  Sleep through this Team Australia pantomime, but, wake up when he attempts further non-explanation of the non-category of metadata. Which is difficult to, um, explain because it’s batshit. And it is batshit that will change the way art is made, distributed and apprehended in this nation.

If we care at all for the production of creative works, we can no longer afford to be bored by the proposed metadata retention legislation. Nor can we accept the sacrifice of freedom is for Our Own Good. If we don’t count the world’s most profitable distributors of digital copyright material, it’s for nobody’s good. And it won’t, despite what the Prime Minister keeps saying, stop terrorists or child abusers.

So, stop snoozing as I explain why this scheme, officially costed at $400 million per year, — that’s around twice the cost of funding reductions to the ABC over five years and about four times the annual cuts to federal arts organisations announced in last year’s budget is not just a waste of money. It’s a waste of creative capital.

After snoring, the most common response to news on metadata, is “I have nothing to worry about because I’ve done nothing wrong”. Well, unless you’ve a photographic memory for case law and crime acts, you really don’t know that. If you have ever had any interest in even mildly transgressive art works, you probably have done something wrong.

Last Year Melbourne artist Paul Yore narrowly escaped a conviction for his Justin Bieber collages. Under proposed laws, police could request a data set listing the identities of those who attended the exhibition. A trip to a council gallery could see you charged for obtaining child pornography.  If this seems ludicrous, you might want to consider that current moral panic about child abuse materials have resulted in two recent convictions for the possession of images of Bart and Lisa Simpson. Sure, this fictional filth is hardly legitimate art. But, if we allow bad taste to be a crime, we pave the path to prison for Yore and other artists explicitly critiquing the sexual commodification of children.

And don’t give me “but anything to stop child porn”. It won’t, but we’ll get to that later. For the moment, consider our long history of banning artworks and criminalising creators and consumers. From Piss Christ to Pasolini to the novels of Zola, artworks are treated with more revulsion in Australia than any other western liberal democracy. Adult consumers of video games were not permitted to legally play items with an R18+ rating until 2012. We were behind the rest of the western world with this decision as we were with making available literary titles that include Baldwin’s Another Country, Joyce’s Ulysses and seventies softcore The Stud. In 2013, I Want Your Love, a queer film lauded by the Anglophone world’s major critics, was refused clasification. Our time-honoured wowserism peaked with the 2008 exhibition of new Bill Henson works and we would do well to note that the original complainant against the artist, Hetty Johnston, appeared last week with the prime minister for a metadata photo op.

In Australia, we classify it, we criminalise it or we complain about it until someone thinks of the children. We have complex censorship laws and a recent tendency, as seen in the Coalition’s sedition laws and the ALP’s absurd clean-feed tantrum, to bolster them. We are fond of quarantining “vice”, even some of our progressive thinkers believe artworks will cause crime and we have no legislative guarantee for freedom of expression. What we are about to be served is a further guarantee of censorship.  To suggest that the diminution of privacy is the diminution of expression is not the extreme blurting of my libertarian arse. It’s a view expressed by the UN’s Special Rapporteur on Freedom of Expression and Opinion.

“The right to privacy is often understood as an essential requirement for the realization of the right to freedom of expression. Undue interference with individuals’ privacy can both directly and indirectly limit the free development and exchange of ideas.”

The amendment proposes that the currently undefined “metadata” — which will include a record of your exact geolocation — be held for a period of two years and be made available to a range of Australian law and intelligence agencies without judicial warrant. And, yes, your information may be subpoenaed by a civil authority so do enjoy future public disclosures of your private activity in divorce proceedings, copyright violation and compensation claims. With no decent art to hearten you.

Metadata retention is an immense, pricy chore likely to cost small internet service providers (ISP) their business. It will cost the rest of us not only as tax payers but as consumers as we pay for ISPs to comply with the new regulations.  So, metadata means that we pay more, small ISP businesses go broke, and the child abusers and terrorists Abbott insists we can’t afford to ignore will remain undetected. Metadata retention will not upturn these criminals.

Dark crime happens in the dark. Terrorist conspiracy and criminal pornography do not unfold in the everyday light of the internet. If one is motivated to harm children in the name of pleasure or kill citizens in the name of ideology or faith, one certainly knows how to hide. Tor or a VPN are among the simple prophylaxes against detection. There is no reliable method of tracking this encrypted activity and the minute before there is, pornographers in particular, always at the forefront of internet technology, have devised a new way to hide.

The ineffectiveness of metadata collection as a form of predictive analytics for serious crime is well-known. Again, this is not just me blurting out my libertarian arse but the general opinion of the information technology industry. It is also evidenced in the case of European data retention — now annulled as unconstitutional — where Germany saw an increase in the crime clearance rate of 0.06%. Of the retention scheme, a German parliamentary report found “the relationship between ends and means is disproportionate”. So, the marginal increase did not halt crimes of such extreme depravity that anyone thought it was worth the cost or the violation of the human right of privacy.

Brandis has simply asked for “trust” in a government that does not understand or will not listen to advice on the woeful ineffectiveness of its batshit policy. We can’t trust an under-informed AG to make good law and we certainly can’t trust that these laws will won’t criminalise or punish everyday people.

But, we can “trust” that these laws will create hostile conditions for art. So, stay with me just a little longer here for the boring conference on batshit asphalt. I know it hurts, but maybe not as much as the dwindling of the culture.

This is not a case against the retrieval of records. Personal data can be currently accessed by agencies and most of us would agree that those suspected of giving profit to child pornographers or imperilling Australian lives should be surveilled. Get a warrant. But not a general warrant applied to us all.

If a citizen is suspected of conspiring to commit a crime, agencies can and do request these records; some of our larger internet service providers will comply, even without a warrant. In the 2012-13 year, more than 300,000 requests for private data were met, at least one of them by a local council.  To argue against the bill is not to argue against the prevention of detection of serious crime through the use of reasonable surveillance. But it is to argue that the terrific expense of retaining all data generated by all Australians for a period of two years is unjustified batshit.

And unethical and useless and a violation of a fundamental human right. And an effective means not of crime prevention but of art prevention in a nation that has long feared cultural expression.

In the early 20th century, Melbourne police regularly raided one of the city’s finest bookstores. In the 1970s and 80s, the Queensland Police Special Bureau was charged with the work of breaking up punk performances. Last year, artist Peter Yore was arrested and tried on a child pornography charge. Community and juridical disdain for art in this nation has a long, unhealthy history which will only metastasise in the atmosphere of these laws.

“Those with nothing to hide have nothing to fear” said the AFP’s Assistant Commissioner yesterday. You can choose to believe this. You can choose to assuage your doubts about your own guilt and the illiberalism of Australia. But, as soon as your mobile device locates you at the wrong gig, the wrong film festival or the wrong gallery, you will have something to hide.

Dark crime happens, as it always has, in dark places. We must not allow this to mean that insubordinate art will never see the light of day.

Metadata retention is boring as batshit. But not nearly so boring as a nation whose culture will be paralysed.


36 responses to “Brandis' metadata plan won't stop crime but will crush art

  1. Wouldn’t it be great if elected politicians went to parliament and did nothing?

    Why do they find it necessary to perpetually legislate when so often old and existing arrangements are perfectly adequate?

  2. This reminds me of an old movie called ‘The Rise And Rise of Michael Rimmer’, where the titular politician kept boring the public with surveys and incomphrensible policy until they voted him Dictator of England just to get some peace.

    1. Frank, that is possibly the greatest thing I’ve read today. Did you make it up? it sounds more like a dream someone would have while recovering from dental surgery on opiates. Thank you for enriching my life. Long live fiction.

  3. Ironically, if the barbarians come to the walls Helen, you would be the first to feel their boot heel on your throat. As we speak, Italy is under threat of invasion. Libya is but a boat ride away, and the maniacs cannot wait to get over to the pathetic weak apologist west and have their way. Islam is an ideology not a religion. It is a no-holds-barred instruction manual for world conquest. Over 100 verses command the grand take-over complete with the extermination of the infidels. You can either stand tall and tough or be an apologist right up until they cut your head off.

    1. If you could explain how metadata retention will stop a single terrorist, I’d be grateful. I’ve not heard anyone make this case and the case was not made in Europe where the scheme was regarded first as useless, prompting just a 0.06% uptake in convictions, and then as unconstitutional.
      I’ll leave you to your paranoia about “Them”. Go for it and knock yourself out. But I can’t let you repeat the government line that this will “stop the terrorists”. It won’t. I hasn’t. Read the piece and follow the links.

      1. Thanks Helen, my favorite article about metadata to date! People are literally too unstimulated by the topic to bother talking about it. I heard Snowden say on YouTube last night that the avalanche of data (he calls it the ‘haystack’) is a serious threat to serious threat detection! And the emphasis on feeding big NSA type programs while neglecting traditional tech-savvy policework will continue to put lives at risk. I work in IT, people get sold this stuff, promised the world, doesn’t mean humans are smart enough to use it.

  4. Scott @ 3:29 “As long as there is proper oversight and restrictions on who has access to the data, which is clearly the case here, Data retention should be compulsory for all ISP’s.”

    They can’t explain it therefore they don’t understand it and can’t even tell us how much it will cost other than a huge wild stab in the dark figure…and you want this farce to continue? And as to buying box sets, don’t accuse us of being cheap…you get with the times mate…the future in entertainment aint box sets its watching the series online.

  5. I read the whole thing and still don’t understand how the proposed changes will ‘crush art’. What am I prevented from doing, in relation to art, by the new laws on data retention? How do they stop me from watching Pasolini or looking at the Piss Christ?
    Are you saying that the only reason I am not being tracked as a potential sex offender for visiting the Linden show is that the police don’t have access to data verifying my location? Or is the whole crux of the article that “the right to privacy is often understood as an essential requirement for the realization of the right to freedom of expression”? If that’s the case I would’ve appreciated maybe at least a sentence explaining why.

    I’m not disagreeing that the proposed changes are a terrible idea but making it all about art seems like a long bow to draw. Maybe an example of something that would have been censored/never created would make the point clearer.

  6. Well in reality they are bypassing the laws or lack of by getting their mates overseas to do their dirty work. Having had the Feds tap into my bedroom because I don’t think the DDW is the pariah they make it out to be & being blocked from submitting articles to the point of being denied access to sites like the green left weekly made me think of ways to turn this anti free speech around. If you want to have a good look at how your country is being run & ridiculed research the Sydney siege. The AFP had ample warning about this mans activities & metadata or the lack thereof made no difference to how the whole sad affair was handled. I am all for keeping the country safe but we need some type of mediator to regulate what really is money pissed up against the wall. Give it back to Aunty.

  7. Have not had such a belly laugh for a bloody long time. Terrific,fresh & inspiring. Sadly though, it is true. The tragedy is we as Australians are being led down the proverbial bullshit path that sadly I’d being swallowed wholis bowlis.

  8. Have you ever read the Geneva conventions? Deadly dull & dry as dust; I personally rate them as the acme of boredom.

    Anyway it turns out that some of our, erm, closest “strategic partners” commit war crimes on a regular basis. And against children too! Who’d a thunk it?

    So my guess is that Tony Abbott, George Brandis, Hetty Johnston also, are not so familiar w/ those legal snoozicles. Otherwise they’d have an ethical imperative to actually make some noise. Oh, and maybe speak to breaches of our own human rights breaches while they’re at it.

  9. Everything you say is true however I believe you are asking the wrong question. This is not a case of sleep walking but a very deliberate act – the question is by whom and for what purpose? Who benefits from data retention? Not the police or the security services so who and why do they have the ear of so many western politicians?

  10. SCOTT: “Its not just about predicting crime, its about obtaining convictions or links to people involved with crime. What if Sydney terrorist Monas was part of a cell? How did he become radicalised? If there were Metadata records, they could go back and search, to try and get ahead of the next attack.” Ho ho ho, Scott; I’m sure ASIO will know all of this information you use to defend the government’s seizure of a nation’s privacy. Two things they did not know was when Monas would strike, or where.

    Pray tell how snooping on a population of 23 million people will add to this nation’s security? By the time their machines have churned through the day’s racing news-as gossiped between friends, the desperately important footy news, the harness racing, bowls, volley ball, golf, tennis, etc. etc, there will be about one and a half seconds non sporting gossip. By this time people like Monas will have left the scene of their crime, caught a taxi, got to the airport, gone through customs, sat in their seat in the plane, listened to the passenger safety notices, ordered a drink and chosen the movie they want to watch, had a nice sleep and woken up to the rising sun over desert sands illuminating the fascinating city of Abu Dhabi.

    Only ignorant fools believe the do-called safety measures dreamed up by a frantic government who after a single term finds itself at dire risk of loosing their overpaid jobs and perks at the next election. I’ll bet that for every single act of terrorism we’ve had in this country fifty to a hundred small boys will have suffered at the hands of their religious priests, rabbis, whatever.

  11. The metadata retention laws are irksome but we’re a long way from throughtcrime. I’m definitely against the legislation because it’s the thin edge of the wedge, but it’s not time to unplug and go live in the woods just yet.

    I can’t really add anything that Scott hasn’t. Good post.

  12. Not a good idea to say “Metadata retention is boring as batshit” as it will distract many pollies from their daily tasks in an endeavour to compare one with the other.

    When I first saw George B struggling on TV to explain exactly what Metadata is, I was driven to drink. A few days later, as I sobered up, I watched as it was explained again, and finally understood the inside and outside of an envelope, their differences and what each part had been designed for.

    I also now realise envelopes have to last for 2 years. All of this new knowledge prompted me to draw this cartoon . . . .


  13. i seriously want someone to #asktony in a presser “have you heard of TOR? or VPN?” just once, just to see what he says

  14. More scaremongering from the “Game of Thrones” free riders. Just buy the box sets will you.

    The definition of Meta Data is very clear. It is IP source info/ISP Subscriber info that matches the IP source/Time of access/destination IP/location of wifi/cell tower info….you know, the type of info that the FBI used to locate and convict Ross William Ulbricht (aka Silk Road). The indictment was clear…they used Commcast/Google metadata to match up the online identity of the “Dredd Pirate Roberts” to Ulbricht. They were lucky to be able to do that…no obligation for those orgs to keep the data.

    Its not just about predicting crime, its about obtaining convictions or links to people involved with crime. What if Sydney terrorist Monas was part of a cell? How did he become radicalised? If there were Metadata records, they could go back and search, to try and get ahead of the next attack. No use putting in a warrant for a dead guy to get future ip activity, nothing is forth coming. If the historical records aren’t kept, the trail is cold.

    As for the child exploitation investigations being affected, the Explanatory Memorandum on the bill makes it clear there are flaws with the current laws. From the report…
    “In 2014 the Australian Federal Police (AFP) revealed that it could not identify more than one-third of all suspects in a current, major child exploitation investigation, because the telecommunications data is not available.”

    As long as there is proper oversight and restrictions on who has access to the data, which is clearly the case here, Data retention should be compulsory for all ISP’s.

    1. To say that there were no records on Monis shows that you have us much knowledge of the case as you do for the spelling of the murderer’s name.

      1. Really Helen? I could just as easily mention the fact that you used ” have us”, instead of ” have as” in your reply to me.
        Mistaken Spelling or grammar doesn’t invalidate either of our points.

    2. Scott, you haven’t explained why Australian metadata retention will be able to catch crooks and yet European metadata retention didn’t. Did you even read Helen Razer’s article or did you just cut and paste from a Brandis crib sheet?

      Proper oversight? They’re going to allow private companies access to the data and even international media distributors.

      Keeping this data provides a large honey pot for criminals seeking to thieve identities.

      And no, I don’t watch “Game of Thrones” or any other pirated content. I’ll wait for it to come on tele.

    3. They were lucky to be able to do that…no obligation for those orgs to keep the data.

      There is nothing in the FBI indictment of Ulbritch that indicates that they had to request any historical data from either Google or Comcast, where historical means older than a few weeks. They had his name and his gmail account from his forum behavior, and they had his location from old fashioned police work. Quit straining so hard to make the Ulbritch case fit your view of reality.

    4. “proper oversight”… how very droll. Just exactly what safeguards are, or would be in place in a case of identity theft by a corrupt official? Or ninety?

  15. Helen, before you write about issues outside art, where you may have some expertise, as has been suggested before, surely it’s essential you at least try to acquire a bare minimum of understanding of the topics on which you preach?
    I’ve seen this illustration numerous times now, but I’m yet to see ANY evidence of your grasp of what’s involved in Security issues.

    1. I believe that I have a fundamental grasp of the proposed surveillance methods and, on advice and extensive reading, I came to the conclusion that the kind of deep packet surveillance requisite to predicting crime is not plausible or really possible.
      Many tech journalists have written extensively on this matter. Many IT experts have warned copiously and publicly about the uselessness of the scheme. If you feel I have misunderstood the majority opinion and that Brandis knows something I currently don’t, please let me know.
      It is true that tech is not my area of expertise. What is not true is that there was not a great deal of primary and secondary research that went into the production of this article.
      If you are going to say “you’re wrong”, you are going to have to say how to make your critique legitimate.

    2. Further, this is a piece intended primarily for an arts audience and/or those who are bored to death by metadata. Call me old-fashioned, but I think the phrases “carrier grade network adaptive translation” and “server requests”, which I forced myself across the weekend to understand, are the kinds of flags that will stop people from reading.
      I know it’s very fashionable these days to tell reporters that they are not experts as though this is some sort of indictment on the “old media” profession. No. We are not experts. We are reporters. We spend days reading and talking and thinking in order to throw light on an abstruse area of knowledge that may be of public interest. Metadata retention is certainly of public interest and it is of interests to consumers and producers of creative works in this country.
      To call a jobbing reporter less than an expert is just stating the obvious. Of course, we are not experts. We are communicators of expertise.
      Again, if you really feel I have fallen short of grasping the issues, tell me how. I will immediately make an appointment with a physician because I have failed to understand about twelve hours of conversation and several weeks of reading and I clearly need medical help.

  16. A lovely young french student said something quite amusing to me at a south yarra restaurant in Melbourne recently

    The people here are so shallow and charmless…there’s no culture at all

    That’s Freedom for you.

  17. I’m glad I was witness to the shenanigans of the young liberals at University who now are in advisory positions…God help us all

    They’re fascist young brats obsessed with status and money only.

    The middle classes that raise them need a slap across their own helicopter parenting techniques

    Raising such narcissistic young people with no empathy

    As my English journalist colleague calls it

    Ugly Anglo Australia is quite nasty and cold

    Spot on there with that stereotype.

    I only wish some controversial artist would depict that in a picture.

    You were warned.

  18. Australia sleep walked into this monster freak of a government, and it won’t be until these mongrels have slapped us around and beat us up that people will finally wake up.

    1. Yes, but Labour is just as happy to let this all pass as we focus on the pantomime that is the current train wreck of our government.

      Both sides profit from this, it is not a red vs blue issue it is a those in power wanting more power issue.

  19. Interesting article. But wish you had not used a bat shit analogy. Bat guano is far more interesting than you realise. It can give you valuable information on diet which as bats are important ecosystem service providers through their insect predation and pollination and seed dispersals. Bat shit is fertile and helps forests and gardens grow. And bats feature in art too.

    Sorry but the analogy distracted me from the important arguments against meta data collection.

    1. Batshit (any shit) is many things, but not boring!
      Boring as Brandis or beige would be more appropriate.
      Excellent article. Thanks Helen.

  20. Thank you Helen, I wish people were less apathetic about giving up their privacy. Hopefully the oscar win of CitizenFour will wake people up

    1. I’m pessimistic that anything can at this point, Jane. Least of all Best Documentary.
      I think in a nation founded on surveillance and weaned on censorship, we accept that a lack of liberty is for our own good. We’re even comforted by it!

  21. An important article focusing on the dangers of looking the other way when governments try and talk about culture.

    Mandatory metadata retention tells the Govt what cultural artifacts I like to read, watch, consume, but also where I like to do it (in the case of a smart phone). And that is bullshit!


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