THE POLITICS OF PRIVACY PROTECTION: AN ANALYSIS OF RESISTANCE TO METADATA RETENTION AND ENCRYPTION ACCESS LAWS Michael Peter Wilson Bachelor of Justice (Honours) Bachelor of Behavioural Science A thesis submitted in fulfilment of the requirements for the degree of Doctor of Philosophy School of Justice, Faculty of Law Queensland University of Technology 2020 Abstract The politics of privacy protection are contested. In recent years, the Australian Government has justified the expansion of surveillance powers, under the Data Retention Act (2015) and Encryption Access Act (2018), by invoking the ‘problem of going dark’ – a claim that the investigative capabilities of law enforcement agencies are being undermined by the use of privacy-enhancing technologies. As such, the ‘problem of going dark’ draws a moral equivalence between privacy protection and methods of evading criminal investigations. This thesis examines the politics of privacy protection within the context of Australia’s national debates about digital surveillance powers, focusing on how privacy advocates contest this moral equivalence embedded within the ‘problem of going dark’. Specifically, this research involves a political discourse analysis (Laclau & Mouffe, 1985) of twenty-one (n=21) semi-structured interviews with Australian privacy advocates involved in campaigns opposing data retention and encryption access laws. Using the analytical constructs of signification, subjectivation, and identification, the research examines how privacy advocates challenge the ‘problem of going dark’, discursively position the subjects of surveillance laws, and mobilise through the construction of shared identities. This thesis argues that Australian privacy advocates contest the moral equivalence embedded within the ‘problem of going dark’ via the articulation of a civic duty to disrupt the relations of domination that enable ‘morally arbitrary’ surveillance under the Data Retention Act (2015) and Encryption Access Act (2018). Overall, it is argued this property of ‘moral arbitrariness’ is important for differentiating between the protection of privacy rights and enabling the evasion of criminal investigations. Key Words: Privacy Protection, Surveillance, Human Rights, Problem of Going Dark, Moral Arbitrariness, Metadata Retention, Encryption Access. 2 Table of Contents Front Matter Abstract 2 Table of Contents 3 List of Abbreviations 8 Statement of Original Authorship 9 Acknowledgements 10 Chapter One: Introduction 12 1.1. Introduction 12 1.2 Political and Legal Context 15 1.3 Research Aim and Questions 21 1.4 Chapter Outlines 22 Chapter Two: Literature Review 26 2.1 Chapter Introduction 26 2.2 Justifying Surveillance Powers 26 2.2.1 The Logics of Preventive Justice 27 2.2.2 Policy Problems and ‘Going Dark’ 30 2.2.3 Accepting the Surveillance Solution 36 2.2.3.1 Familiarity and Normalisation 38 2.2.3.2 Fear and Uncertainty 43 2.2.3.3 Surveillance Sub-Cultures 46 2.2.4 The Limits of the Surveillance Solution 49 2.3 The Symbiosis of Surveillance and Privacy 58 2.3.1 Privacy Litigation 59 3 2.3.2 Privacy Campaigns 65 2.3.3 Privacy Behaviours 71 2.3.4 Privacy-Enhancing Technologies 76 2.3.5 Counter-Surveillance 83 2.4 The Moral Right to Privacy 87 2.4.1 The Contested Properties of Privacy 88 2.4.2 Consequentialist Theories of Privacy 89 2.4.3 Deontological Theories of Privacy 95 2.4.4 The Limits of Liberal Privacy Rights 99 2.4.5 The Communitarian Critique of Privacy 102 2.4.6 The Civic Republican Theory Privacy 105 2.4.7 The Problems with Illiberal Privacy 108 2.5 The Gap in the Literature 111 Chapter Three: Theoretical Framework and Research Methodology 112 3.1 Chapter Introduction 112 3.2 Political Discourse Analysis 112 3.2.1 Semi-Structured Interviews 115 3.2.2 Sampling and Participants 117 3.2.3 Coding and Analysis 119 3.2.4 Trustworthiness 122 3.3 Research Ethics 125 3.4 Limitations of Research 127 4 Chapter Four: Contesting the ‘Problem of Going Dark’ 129 4.1 Chapter Introduction 129 4.2 The Relational Properties of Privacy 130 4.2.1 The ‘Trading-Off’ of Privacy and Security 130 4.2.2 Privacy as ‘Necessary’ for Security 132 4.3 Privacy Advocacy and Liberal Discourse 136 4.3.1 Articulating the ‘Presumption of Privacy’ 137 4.3.2 Privacy as a Right to Non-Interference 140 4.3.2.1 Privacy and the Necessity Principle 140 4.3.2.2 Privacy and the Proportionality Principle 147 4.3.2.3 Privacy and the Accountability Principle 153 4.3.2.4 Privacy and the (Collapsed) Harm Principle 156 4.4 Ascribing Arbitrariness to Surveillance Powers 164 4.5 Chapter Conclusion 172 Chapter Five: The Subjects of Surveillance Law 174 5.1 Chapter Introduction 174 5.2 Positioning Citizens as Culpable Victims 175 5.2.1 Positioning Citizens as Technologically Ignorant 176 5.2.2 Positioning Citizens as Politically Apathetic 178 5.3 Positioning Political Elites as Antagonists 181 5.3.1 The Positioning of the Australian Government 182 5.3.1.1 Positioning the Government as Disingenuous 182 5.3.1.2 Positioning the Government as Incompetent 189 5.3.2 The Positioning of Law Enforcement Agencies 192 5 5.3.2.1 Positioning Law Enforcement as Manipulative 193 5.3.2.2 Deference to the Five Eyes Intelligence Community 196 5.3.2.3 Encumbered by the Demands of Preventive Justice 197 5.3.3 The Positioning of Technology Companies 203 5.3.3.1 Companies as Complicit in Data Commodification 203 5.3.3.2 Technology Companies and Corporate Responsibility 208 5.4 Surveillance Subjects and Relations of Power 213 5.4.1 Surveillance Powers, Citizens, and Political Elites 214 5.4.2 The Civic Corruption of Political Institutions 218 5.5 Chapter Conclusion 225 Chapter Six: Advocating Resistance to Surveillance Power 227 6.1 Chapter Introduction 227 6.2 Self-Identification as a ‘Privacy Advocate’ 228 6.2.1 Conflict within the Australian Privacy Movement 229 6.2.1.1 Interpersonal and Intergroup Conflict 229 6.2.1.2 The Struggle to Build Privacy Coalitions 236 6.2.2 Identity within the Australia Privacy Movement 239 6.2.2.1 Privacy Advocacy as a Shared Struggle 240 6.2.2.2 Recognition of Expertise in Law and Technology 242 6.2.2.3 Shared Experiences of Marginalisation 244 6.3 Constructing a Civic Duty to Advocate Resistance 248 6.3.1 Privacy Protection as Defending Human Rights 249 6.3.2 Privacy Protection and Citizen Cultivation 262 6.4 Chapter Conclusion 271 6 Chapter Seven: Conclusion 273 7.1. Introduction 273 7.2. Summary of the Thesis 273 7.3. Original Contributions of the Research 278 7.4 Avenues for Further Research 281 Reference List 284 Cases Cited 340 Legislation Cited 342 Appendices Appendix A 344 Appendix B 347 Appendix C 353 Appendix D 354 Appendix E 356 Appendix F 357 Appendix G 358 7 List of Abbreviations APF Australian Privacy Foundation APPs Australian Privacy Principles Data Retention Act Telecommunications (Interception and Access) Amendment (Data Retention) Act Data Retention Bill Telecommunications (Interception and Access) Amendment (Data Retention) Bill DRW Digital Rights Watch EFA Electronic Frontiers Australia Encryption Access Act Telecommunications and Other Legislation Amendment (Assistance and Access) Act HUMINT Human Intelligence NHMRC National Health and Medical Research Council PJCIS Parliamentary Joint Committee on Intelligence and Security QUT Queensland University of Technology UHREC University Human Research Ethics Committee 8 Statement of Original Authorship The work contained in this thesis has not been previously submitted to meet requirements of an award at this or any other higher education institution. To the best of my knowledge and belief, the thesis contains no material previously published or written by another person, except where due reference is made. Date: 03 April 2020 Michael Peter Wilson QUT Verified Signature (Signed) 9 Acknowledgements This thesis would not have been possible without the advice, assistance, and support from my colleagues, friends, and family over these past four years. The ideas discussed within these pages are just as much the product of conversations over coffees as they are the result of hours spent in isolation. Additionally, I note that the research was made possible because of financial support from the Research Training Program and the QUT Excellence Scholarship. To all of you who helped – thank you. I am forever indebted to my supervisor, Erin O’Brien, who has nurtured my curiosity, listened to my frustrations, and supported me whenever the task of finishing the manuscript felt insurmountable. Thank you for all the evenings and weekends sacrificed reading drafts – I am truly lucky to have had a supervisor, colleague, and friend, as compassionate as you along with me for this journey. As per our promise, I’ll be the one buying the coffees from now on. Thank you to everyone within the QUT Faculty of Law who helped challenge, refine, and shape my ideas during my candidature. I am particularly thankful to Russell Hogg and Belinda Carpenter for reading through several versions of the thesis. Your guidance and feedback challenged me to make my work better. I also wish to thank Nic Suzor, Monique Mann, Cassandra Cross, Helen Berents, and Angela Daly. All of you have influenced my thinking as a socio-legal researcher. I would also like to thank all the privacy advocates who gave their time and shared their thoughts with me as part of this research. It is our conversations that have shaped the ideas within these pages more than anything else. Your dedication to the cause of protecting human rights has been a constant source of motivation. Thank you to my friends who provided company over the past several years, despite how busy I always seemed. In particular, I wish to express thanks to Amanda Beem 10 for the camaraderie during our candidatures.