OH THAT METADATA
Time for a nap.
Metadata. “How interesting!” you cry. “Allow me to get comfortable under this lovely soft blanket, ignore any snoring noises, and please, tell me all about it!” Which would have been my exact response 6 months ago, but then I went to an information session run by Greens Senator Scott Ludlam and my tendency to fall asleep was swiftly replaced with curiosity, and then with nail-biting paranoia. Back then I didn’t know what metadata was, nor what the legislative changes surrounding had to do with me, but the more I learnt the more uncomfortable I became and thus my journey into understanding metadata began.
The Act.
The ‘Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 came into effect on October 31st last year. The act obliges your internet service provider to collect and store volumes of your personal information for two years, and then allows government agencies to access this information without a warrant, or your knowledge or your consent. “But I haven’t committed any crime” you say. Indeed.
The What.
The type of information which will be retained under the new legislation was eloquently, and memorably, explained by George Brandis on Sky News but, for those of us who are still confused, the Attorney General's Department has broken it down as “...the who, when, where and how, but not the what.” Oh, ok... Wait, what? Essentially this means all communication made through an internet or phone service will be logged and stored including:
All parties involved, including names and addresses,
The location of each party at the time of communication,
The duration of the communication,
What devices were used, and
The type of communication (ie text message, email etc.).
Attorney General’s Department, 2015
The content of the communication will not be stored, granted, so your emails can’t be read, your phone conversation not listened to and the lewd details of your smutty internet sex-chat will remain relatively private, so what’s the problem? Well, there may be a few, and I will go into some discussion about them, however, I think it’s worth mentioning here that the bill has passed and the new law is currently in effect, so whether Australians like it, want it, or even know about it, our data is currently being logged and is accessible to those who want it.
The Why.
Those in support of data retention are emphatic that data retention laws are necessary to maintain national security and protect Australian citizens from the ever looming threat of terrorism. It’s a noble cause no doubt, but it will be interesting to see just how effective this scheme is as it is certainly following in the footsteps of international failure. A 2014 report on the National Security Agency (NSA) of the United States of America found that mass internet surveillance had “no discernible impact” on preventing terrorist activity (Cahall, Sternman, Schneider & Bergman, 2014). Data retention laws were established with the same objective in the European Union in 2006, however, many countries have since overturned the law citing their ineffectiveness in preventing crime, as well as a violation of human rights.
"[The] marginal increase in the [crime] clearance rate by 0.006% could raise doubts about whether the provisions in their current form would stand their ground under a proportionality review. In any case, the relationship between ends and means is disproportionate."
(Legal Services of the German Bundestag, 2011)
When it comes to government surveillance people often respond by claiming that they have nothing to hide. “The ‘nothing to hide’ argument is the most common retort against privacy advocates” (Solove, 2008). This could be considered a valid position, for most people, in this exact political and social environment. It is based on the assumption that the average reasonable person will never have anything to hide, which places a lot of faith in the governments of the future. The conjecture is that this is as far as government will go in terms of removing civil liberties. Furthermore, if the government thought that you did have something to hide, it already had an avenue for accessing all your information prior to the data retention act: with a warrant. The ‘nothing to hide’ argument also places a lot of faith in the picture which your metadata paints of you. Research by Stanford University in 2014 demonstrated that metadata could be used to create a profile of someone’s medical, political, religious, legal and financial positions as well as information about friends and associates (The Stanford Report, 2014). That picture could be scarily accurate, however the flip side of the coin is that it may well be incorrect, and the impetus is now on you to prove otherwise. So far there have been no cases of someone having to defend themselves against their own data-profile, but as one article in Lawyers Weekly states “Simply put, metadata is evidence…, we will soon see cases where metadata has been incorrectly handled” (Grant, M. 2015). Finally, hats off to all the people who may legitimately need online anonymity; Journalists, political activists and whistleblowers are certainly not criminals but they, like you, are now subjected to continuous surveillance.
"Arguing that you don't care about the right to privacy because you have nothing to hide is no different than saying you don't care about free speech because you have nothing to say,"
Edward Snowden, 2015.
But surveillance by who exactly?
The Who.
Well, there is a list of agencies which have applied. This list is not supplied by the Attorney General’s office, which simply states they are “agencies that have a clear need for such access” …such as law enforcement and intelligence agencies… “for the purposes e of investigating criminal offences and other permitted purposes.” The definition of ‘criminal law enforcement agency’ is left to the discretion of the Department of the Attorney General, which may explain how Australia Post and the WA Department of Mines and Petroleum ended up on the list. There are currently about 60 agencies which have requested access, and only a small number appear to me to be concerned with preventing terrorist activity in Australia: Harness Racing NSW, Department of Fisheries WA anyone? It is unclear if the public will be made aware of the success or failure of these applications.
The What Now?
It’s interesting to note that there are several simple steps you can take to avoid or minimize having your data collected. These measures can include things like installing a VPN or a TOR, or if you are more technologically advanced you can use a PGP network, but the fact that this is possible completely undermines the point of having it in the first place. Surely anyone truly concerned with hiding online activity would take the time to quickly, easily and cheaply circumnavigate the data collection nets, which leaves what for the investigators? Reams of boring internet activity of the average daily citizen googling what scabies looks like and how to treat it. And at a cost of 300 million dollars for the Australian government. I work in the public health system and sometimes we don’t even have thermometers. Government surveillance is a reality, I think that everyone is aware of that on some level, but this new law takes things much further. The most uncomfortable part of it for me is how vague and undefined the legislation is, whilst simultaneously being extremely far reaching and encompassing every person who uses the internet or a phone in Australia. As metadata starts to be increasingly used as evidence it will be interesting to see who is being prosecuted, and who is allowed to access the information. It’s a brave new world, and in my opinion it’s time for us to start thinking about privacy and what that really means for us.
“There is no sentient human being in the Western world who has little or no regard for his or her personal privacy; those who would attempt such claims cannot withstand even a few minutes’ questioning about intimate aspects of their lives without capitulating to the intrusiveness of certain subject matters.”
(Flaherty, 1999)
Jillian Royds loves writing, conspiracy theories and tinfoil hats. Her 2016 resolution was to be more mysterious and to solve more crimes. Please direct any other questions about her to Harness Racing NSW, who have full access to all her files.
References
Anderson, S. List of agencies applying for metadata access without a warrant released by government. ABC News, 18/1/2016, retrieved 8/2/2016 from http://www.abc.net.au/news/2016-01-18/government-releases-list-of-agencies-applying-to-access-metadata/7095836
Australian Government, Attorney General’s Department: Data Retention. retrieved 8/2/2016 from https://www.ag.gov.au/dataretention
Cahall, B., Sterman, D., Schneider, E & Bergen, P. (2014) Do NSA’s Bulk Surveillance Programs Stop Terrorists? New America, Retrieved 8/2/2016 from https://www.newamerica.org/
Flaherty, D. (1999) Visions of privacy: Past, Present and Future in Visions of Privacy: Policy Choices for the Digital Age, 19 (31)
Grant, M. (2015) Why you should care about metadata. Lawyers Weekly, retrieved 11/2/2015 from http://www.lawyersweekly.com.au/sponsored-features/17131-why-you-should-care-about-metadata
Impossible to Ensure Legality of EU Communications Data Retention Directive Says German Parliament, retrieved 8/2/2016 from http://www.vorratsdatenspeicherung.de/content/view/446/79/ lang,en/
Solove, D. (2008) “I’ve got nothing to hide” and other misunderstandings about privacy. San Diego Law Review, Vol. 44, p. 745, 2007; GWU Law School Public Law Research Paper No. 289. retrieved 11/2/2015 from http://papers.ssrn.com/soL3/papers.cfm?abstract_id=998565
Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015, Australian Government, retrieved 8/2/2016 from https://www.comlaw.gov.au/Details/C2015A00039
The full list of agencies that have applied for metadata information can be accessed at: http://www.abc.net.au/news/2016-01-18/government-releases-listof-agencies-applying-to-access-metadata/7095836.
