Data surveillance reaches a new level

By Liz Banks-Anderson

On March 26, a new bill was passed that has journalists and lawyers concerned about our privacy and freedom of the press.

The Telecommunications Interception and Access Amendment (Data Retention) Act, which became law on 13 April 2015, is one of three counter-terrorism and security measures introduced by the Australian Federal Government in an effort to protect national security.

A record of your electronic communications – who you call, text or email and the time and date – will now be kept by service providers for two years. More than twenty law enforcement agencies can access these records without a warrant, and are not obliged to inform the individual whose data it is.

Data retention is the compulsory retention of information about a citizen's telecommunications and online usage, either by telecommunications companies or Internet service providers.

While the Australian Federal Government says that metadata retention is vital for the security and safety of the Australian public, many legal bodies, politicians and journalists have voiced strong concerns about whether such requirements are measurable and proportionate.

Metadata is the electronic trail we leave on our computers and phones. It can track where we have been with our phones at any time and build a profile of a person's communication activity that can reveal everything about them.

The debate surrounding the law is underlined by the legal technicalities and the broader issues around the importance of confidentiality, freedom of speech, a free press and privacy.

Law Institute of Victoria President and MLS alumna Katie Miller says that the LIV's concerns started when the bill was first introduced. In its initial submission to the Parliamentary Joint Committee on Intelligence and Security, the LIV identified more than thirty unanswered concerns and questions about the bill.

"To begin with, our concerns were that this was basically disrupting and changing the power balance between the state and its citizens."

"We were also concerned about the way the scheme had been developed; originally there was very little detail in the bill itself. It was essentially a framework bill – it said that telecommunications and Internet service providers would need to keep our data but it didn't tell us what that data was," Ms Miller says.

Despite some improvements after the parliamentary joint committee submitted its report, the LIV says many unanswered questions remain.

"We think that it is a bill that has been sold on the basis of preventing and detecting serious crime and terrorism, but it is not limited to serious crime and terrorism," she says.

The LIV says that this data could be used for other purposes such as in civil litigation disputes and workplace disputes; for example, in family law where the data could be used by a disgruntled ex-spouse to argue the other is an unfit parent.

"In terms of what this data is ultimately used for, really we are only limited by the imagination of both law enforcement agencies and hackers who might find uses for this information," Ms Miller says.

The Law Institute of Victoria's biggest concern, however, is that the law is not proportionate or reasonable in its stated aim.

"With this bill, it did not have to be like this. For example, they could have put in a much stronger prohibition in the bill limiting the use of data collected for purposes other than investigations into preventing and detecting serious crime and terrorism," Ms Miller says.

The two biggest safeguards, however, would have been requiring the investigator to be granted a warrant before accessing this data and reducing the data retention period to three to six months.

Ms Miller says that these laws constitute a breach of privacy, opposing the idea that it is only an intrusion of privacy when someone actually accesses the data.

"The LIV strongly disputes that. Part of the reason we dispute that is because when you go to the Privacy Act, one of the first principles is 'do not collect what you do not need'. So the mere collection is an intrusion of privacy. We basically have legislation authorising a massive intrusion of privacy.

"Consequences of this is that you will either start feeling very uncomfortable going about your daily life – every time you make a phone call, for example – or people will just become desensitised to these intrusions of privacy by government," Ms Miller says.

The LIV believes the law takes away people's choice and fundamental right to privacy. In a digital world, where everything is online and able to be hacked, is privacy a realistic expectation?

In an address to Parliament in March, Greens Senator Scott Ludlam said that the metadata bill has entrenched a system of passive mass surveillance.

"Your phone handset is essentially a tracking device that allows you to make phone calls," he said.

Ms Miller says the law highlights a need to return the control over privacy to the individual to revisit a nuanced perception of privacy.

"We need to get away from the idea that you can either have privacy or you can have a service and that privacy is an all or nothing concept."

"At the centre of any discussion around privacy, we really need to put the individual first and allow the individual to have control over their privacy, rather than telling them it's not important," she says.

Ms Miller says the concept of privacy in an online world is dependent on the facts and circumstances.

"I think we have always been used to the idea that you have different levels of privacy depending on where you are and even the age that you are – for example children have less privacy than adults. Online, it is the same – there will be some places where you can have more confidence in your privacy than others," she says.

Getting this balance between protection and liberty right will have an unprecedented impact not only on the legal profession but also on the media's capacity to hold the Government accountable.

It is feared the law will threaten journalistic freedom by jeopardising the confidentiality of sources.

Division 4C of the amended act states that if a law enforcement agency wants to search a journalist's metadata for confidential sources, it has to be issued a journalist information warrant from an issuing authority.

The Act states the warrant should be issued only if the public interest in doing so outweighs other public interest, including the source's right to privacy.

Deputy Director of the Centre for Media and Communications Law at Melbourne Law School, Jason Bosland says his main concern surrounding the legislation is the ability of the government and law enforcement agencies to obtain information about journalists' sources.

This goes against recent trends granting protection to journalists' sources that he says have been developing over time. Anyone who discloses or uses information about a journalist information warrant can be sentenced to two years in prison.

"It goes against the broader legislative trend towards granting greater protection to journalists' sources.

"There are definitely problems with it – primarily, that journalists will not even know when their data is being accessed. The decision process to grant access to data is essentially behind closed doors," Mr Bosland says.

The law could also have a strong chilling effect on reportage, particularly investigative journalism, which relies on ensuring whistleblower confidentiality.

Mr Bosland believes the law will have two consequences: that it will dissuade whistleblowers from contacting journalists and will also change the way in which whistleblowers communicate with journalists.

"The confidentiality of sources is so important. If there is some sort of digital footprint that can be accessed, then it appears to me that whistleblower approaches will change.

"People are not going to be emailing documents through or making phone calls. It may be that things happen via postal mail, but even then it could still be tracked electronically," he says.

This amendment also raises the question of whether certain professions should be granted more privacy. The LIV is advocating for a similar information warrant to be considered for lawyers and doctors, where confidentiality is as important.

"The Law Institute of Victoria's view is that if the information warrant amendment is good enough for journalists, then it is good enough for - if not everyone - then at the bare minimum, doctors and lawyers," Ms Miller says.

The Law Institute will now focus on equipping lawyers with the skills needed to continue communicating with clients confidentially in a data-retentive world and evaluating the best channels for their communication.

"That means teaching lawyers about the different communication techniques that are available. It is no longer just a matter of having a mobile, landline and email. It is a matter of thinking before you make the communication."

Banner image: Privacy data image
Credit: iStock image

This article originally appeared in MLS News, Issue 13, June 2015.