Geordie Guy
theguardian.com, Wednesday 6 August 2014 12.48 AEST
If the authorities want to invade your privacy, they should get a warrant. If the federal police want to know what you’re up to, or Asio suspect you’re a terrorist, they should go to a judge, and convince them that their hunch is reasonable. In other words, if they want to exercise powers normal folks can’t, they should get a warrant.
But not every intrusion currently requires a warrant. “Metadata” is a newish term that describes information the authorities say is too trivial to require a warrant, because it’s not the contents of a communication itself but peripheral information about that communication – such as the time and date an email was sent, who to and whether it was received. Tony Abbott likens it to the information on the “front of an envelope”.
To give you an idea of how fatuous this distinction is, the embarrassing contents of your medical records are “data” and require a warrant, but the fact that you placed a call to a GP clinic on Monday, were emailed by a pathology lab on Wednesday, Googled for pharmacies near work, and then spent the next three days trying to Skype ex-girlfriends, is metadata – and doesn’t need a warrant.
Government authorities can’t trawl through your computer speculatively for correspondence in which you reveal you are dealing with a mental health matter, because that’s none of their business without judicial authorisation. But it’s perfectly acceptable for them to access records showing you called Lifeline at 3am from a seaside lookout point, after recording five hours of transactions at a nearby bar, and repeatedly texting your ex-wife – all without a warrant.
Metadata is, of course, just data. And the authorities want more of it.
The only thing more awkward for the AFP and Asio than the increasing public realisation that the data/metadata distinction is nothing more than a sales pitch, is that there isn’t as much metadata lying around as there was. When the hallway telephone was the way everyone communicated, the phone company generated logs of who called whom and for how long in order to send out the bills. The police could access this metadata with gleeful, unregulated abandon, because there was heaps of it around for a commercial purpose.
Today the situation is different. Internet service providers, who provide the infrastructure for interactions online, don’t need to record and store metadata because they sell data by volume and bandwidth. The fact you visit one website or another is immaterial to an ISP, regardless of how exciting it might be for the police.
Rather than allow the commercial realities of modern telco billing systems to get in the way of a panopticon, George Brandis, the attorney-general, has announced that the government will require ISPs to create and maintain vast warehouses of commercially pointless metadata anyway, so the spooks and plods can browse through it at their leisure.
The cost of your Internet provider creating and storing metadata about every click you make and every selfie you fake is astonishing – that data needs to be stored on servers, in buildings, with people to look after it all. Those costs will be passed on to consumers. It’s worse when you consider that ISPs have no business use for all this information, and are storing it for the government-mandated two years just in case Agent Smith wants to flick through it.
This commercial impracticality, along with the fact it’s a bit pervy, are parts of the reason the Court of Justice of the European Union overturned data retention in Europe as contrary to the “right of respect for private life” and the “fundamental right to the protection of personal data”.
They might have been less enthusiastic about junking the idea if it could be proved to be useful to actual law enforcement, and not just a tool for speculatively checking people out. But consider that whenever our law enforcement and intelligence communities have ever got the job done, it’s been in the absence of these powers.
It seems that where folks are up to no good the Commonwealth tends to be able to apprehend them. The Benbrika group was probably the highest profile terrorist case on Australian soil. For what it’s worth (very little, those convicted were planning to blow up a football game or a train station, and hadn’t even made a decision) they were arrested, convicted and jailed without the far-reaching powers Brandis has just announced.
It also seems where no crime was committed we tend to fail to secure convictions, regardless of the powers wielded and the ethical issues involved in their application. Muhamed Haneef, for example, was accused of engaging in terrorist activities, the evidence of which the Clarke Inquiry found to be “completely deficient”.
Hundreds of dollars per month in passed-on costs for Australian internet users. An unacceptable civil liberties violation, for the authorities to know everything about us – and that’s even before they accidentally out every gay guy in the country, in the inevitable leak of the database containing the date that every Australian Grindr user signed up. This proposal needs to be put away, forever, and quickly.