Australia outlaws warrant canaries


The exceptionally broad new surveillance bill lets the government do nearly unlimited warrantless mass surveillance, even of lawyer-client privileged communications, and bans warrant canaries, making it an offense to "disclose information about the existence or non-existence" of a warrant to spy on journalists.

Despite that move away from retaining communications metadata by the EU and continuing concerns in the US about the National Security Agency's bulk phone metadata spying program, the Australian government was able to push through the amendments implementing data retention thanks to the support of the main opposition party. Labor agreed to vote in favor of the Bill once a requirement to use special "journalist information warrants" was introduced for access to journalists' metadata, with a view to shielding their sources. No warrant is required for obtaining the metadata of other classes of users, not even privileged communications between lawyers and their clients. Even for journalists, the extra protection is weak, and the definition of what constitutes a journalist is rather narrow—bloggers and occasional writers are probably not covered.

Warrant canaries can't be used in this context either. Section 182A of the new law says that a person commits an offense if he or she discloses or uses information about "the existence or non-existence of such a [journalist information] warrant." The penalty upon conviction is two years imprisonment.

During the relatively quick passage of the amendments, the Australian government made the usual argument that metadata needs to be retained for long periods in order to fight terrorism and serious crime—even though the German experience is that, in practice, data retention does not help. Toward the end of the debate, when concerns about journalist sources were raised, one senior member of the Australian government adopted a more unusual approach to calming people's fears.

Australian government minister: Dodge new data retention law like this [Glyn Moody/Ars Technica]

(Image: A Girl with a Dead Canary, Jean-Baptiste Greuze, public domain)

Notable Replies

  1. Can you un-ring a bell through legislation?

    Perhaps the logical response to a law making you pretend there isn't an investigation is to just play it to its logical conclusion and ignore all government requests pertaining to the investigation that you can't acknowledge or deny is happening.

  2. Exactly! This would be an appropriate response.

  3. So all Australians are responsible for covering for spies. Even if you haven't been subject to a warrant, you have to pretend like maybe you were and maybe you weren't. Because it would be a crime to say either way.

    This raises the question: when you lie to cover for the spies, how convincing are you legally required to be? Could you be held liable for being a shitty liar?

  4. Australia is one of the Five Eyes.

    The Five Eyes alliance is sort of an artifact of the post World War II era where the Anglophone countries are the major powers banded together to sort of co-operate and share the costs of intelligence gathering infrastructure...The result of this was over decades and decades some sort of a supra-national intelligence organisation that doesn’t answer to the laws of its own countries.
    —Edward Snowden

  5. Perhaps Kurt Gödel could be of assistance.

    "We can't post a Warrant Canary, but we can post a statement telling you that we can't post a Warrant Canary..."

    and if that's banned...

    "We can't post a statement telling you that we can't post a Warrant Canary, but we can post a statement telling you that the can't post a statement telling you that we can't post a Warrant Canary"...

    and so it goes...an infinite regression of statements about statements...

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