Australians and Meta Data

The changes to the  Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015, [1] now require networks and telecommunications providers to retain customer records and “metadata” for a minimum of two years.

Meta data includes each aspect of a call, the date time and location of call. Text messages, the location of an email, where a picture is taken. Complete access to forums, blogs and the source of the IP address. [2]

All metadata is prior to the new legislation was encrypted to protect the actual content, of text messages, emails, PIN numbers and passwords and was not be accessible without a warrant.[3]  Now new agencies have been  granted new powers under the new Act including; the Australian Competition and Consumer Commission (ACCC) and the Australian Securities and Investments Commission (ASIC) now neither party require a warrant.

Although there are now provisions to gain a warrant for journalists;[4] it is impossible for all of these agencies to know all journalists.[5]

The Law Council of Australia’s Mr McConnell,[6] found another inconsistency may well arise when an authorisation is made under a journalist information warrant—is no later than the end of the period specified under section 180N, as the period for which the warrant is to remain in force.

Another discrepancy arises when a Whistleblower- contacts a lawyer for legal advice, before contacting a journalist, the information is immediately known by others due to meta data collection.[8] This means a corrupt government department now has the heads up- on whistle blowers.

An important section which was omitted promised a reasonable regard for privacy. [9] The legislation provides a service provider, may apply in writing to the ACMA for review of a decision under subsection 187K(1),relating to the service provider. Yet once the adverse confidential information is disclosed the whistleblower is known.

To this very day, there is no provision in the law, on how it intends to remedy a breach done to a journalist if a source is uncovered; provided within the revoke authorisation section. [10]

Questions asked by The Senate Legal and Constitutional Affairs References Committee surrounding the exemption for ‘immediate circle’ and for ‘same place’ and the maximum number of devices that a single warrants allows, still remains a mystery, a year after the law has been enacted.

These are a very expansive set of powers.[11]There is no cap on the number of devices that a single ASIO warrant may cover. It may have the capacity to capture every device within a university, or it may take on an entire township during a possible investigation.[12]

However circumvention is possible for those with a bit of IT knowledge, [13] Natasha Despoja, describes the massive amount of attainable data as a honey pot for hackers.[14] “No laws currently exist on data breaches.”[15]She said. [16] The new intrusive law provides financial incentives for network providers. [17]

It is unknown if there has been interruptions to network services consumers pay for, as quality service providers are busy collecting meta data.[18]

There are serious penalties for breaches.[19] A journalist information warrant once issued will specify the period for which it is to be in force generally a period of up to 90 days.[20]These warrants will be done in secret, yet journalists will continue to work in the light, whilst journalist Liam Tung points out- ‘criminals will hide within the dark web.’[21].

[1] https://www.comlaw.gov.au/Details/C2015A00039 All retained data activity means- an activity relating to information, or documents, which a service provider has been required to keep under Part 5-1A of the Telecommunications (Interception and Access) Act 1979. 

[2] Australians are not provided privacy protections within the Constitution (Cth) as our US counterparts are unable to collect meta data to the extent Australian law now does.

[3] Meta data retention by Rouse M. http://rouselawyers.com.au/metadata-retention/

[4] Note: Section 184 deals with notification of authorisations for a warrant for journalists.

[5] A PhD student for example from oversea,s or heavily into research, may not be known to the ACCC.

[6] http://www.theaustralian.com.au/business/legal-affairs/lawyers-call-for-metadata-amendments-on-privilege-protection/story-e6frg97x-1227270180746

[7] If the authorisation is made under a journalist information warrant—is no later than the end of the period specified under section 180N- as the period for which the warrant is to remain in force.

[8] Mr McConnel recognises that legal professional privilege covers the content of communications between lawyers and clients, but points to a High Court decision where three judges said legal professional privilege may also apply to telecommunications data that discloses a client’s identity.

[9] 6J  Section 180F Omit “have regard to whether any interference with the privacy of any person or persons that may result from the disclosure or use is justifiable”, substitute “be satisfied on reasonable grounds that any interference with the privacy of any person or persons that may result from the disclosure or use is justifiable and proportionate”.

[10] S 176(6) provides Revoking the authorisation  (6) An eligible person must revoke the authorisation if:  (a) he or she is satisfied that the disclosure is no longer required; or  (b) in a case where the authorisation is made under a journalist information warrant:  (i) the warrant is revoked under subsection 180N(1); or  (ii) the Director-General of Security has informed the Minister under section 180P that the Director-General is satisfied that the grounds on which the warrant was issued have ceased to exist.

[11] Independent Senator Nick Xenophon questioning QC Attorney General Brandis.

[12] Senator Scott Ludlum in the debate above questioning QC Attorney General Brandis.

[13] The circumventing of our data-https://www.youtube.com/watch?v=bfVA9t_lbQ&feature=youtu.be

[14] Also see Liam Tung 17/03/15 http://www.brisbanetimes.com.au/it-pro/security-it/dark-web-keeps-criminals-out-of-reach-of-metadata-retention-laws-20150317-1m125k.html

[15] ABC- Down Load This Show– Comments by Natasha Stott Despoja https://www.youtube.com/watch?v=a8c82nCIpOY

[16] The Bill has been described as disentangling the indiscriminate- by Senator Scott Ludlum

[17] Section- 187KB  Commonwealth may make a grant of financial assistance to service providers

[18] The Bill’s debate- Senator Scott Ludlum put some questions to the consequence of driving customers to offshore provider. It would be impossible for a journalist to work these days without the use of these networks.

[19] Found in section 182A  Disclosure/use offences: journalist information warrants

[20]  Form and content of a journalist information warrant found in section 180U.

[21] Mr Moore explains how criminals can hide-http://www.brisbanetimes.com.au/it-pro/security-it/dark-web-keeps-criminals-out-of-reach-of-metadata-retention-laws-20150317-1m125k.html

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