Metadata is defined by the Oxford Dictionary as ‘a set of data...

Metadata is defined by the Oxford Dictionary as ‘a set of data that describes and gives information about other data’.1 The Federal Government’s proposed metadata laws would require telcos to store customers’ phone and internet data for at least two years.2 However, Attorney-General George Brandis has promised the Federal Coalition’s proposed metadata laws would set down a precise definition of metadata around “information about the communication, not the content or the substance of the communication”.3 The bill potentially presents problems around the issues of financial fraud and identity theft, as well as the hobbling of investigative journalism, which will be further examined below.

The ‘if you have nothing to hide’ argument underpins attempts to strengthen the State against the individual in the area of policing and intelligence. However the flip-side of the coin is whether policing and intelligence can always be trusted. While the majority of law enforcement officials are diligent and faithful to their office, it only takes one rogue intelligence officer to abuse such a metadata system. A confidential discussion paper the Attorney-General circulated around telcos last August would require them to store not only phone numbers, locations, time and duration of calls, but “date of birth, financial and billing information”.4 It is not hard to imagine an individual misusing the warrant process by concocting a story against someone with money to obtain banking details from internet banking metadata. Nor is it difficult to envisage a law enforcement official with organised crime links, who seeks warrants in order to collect metadata from online application forms, with a view to on-selling IDs for false passports and the like.

Senator Brandis’s metadata bill offers little protection for investigative journalists, whom a liberal democracy relies on to give voice to whistle-blowers to keep the system honest. Senator Brandis has foreshadowed additional protections for journalists and those performing journalistic functions, such as broadcasters, commentators, and authors, while excluding bloggers.5 However, given metadata could be accessed without an individual’s knowledge, any such grounds for challenging access are moot at best. This contrasts to the US and British model of metadata retention, allowing a journalist to be forewarned a warrant is being sought to access metadata. This is designed to allow a journalist to challenge a warrant application to protect his/her sources, so whistle-blowers have the courage to come forward.

There are excellent arguments for strengthening intelligence-gathering tools. However, a healthy Australian e-commerce space requires telco customers have confidence their financial and personal data will be protected. Likewise, a robust democracy needs to protect whistle-blowers, given freedom of political speech relies on individuals with the courage to publicly espouse their views. It could be a case of laws made in haste make waste, requiring later amendment, unless the Senate extracts necessary amendments.

Footnotes

1. Oxford Dictionaries: British and World English (Online), 18 March 2015 <http://www.oxforddictionaries.com/definition/english/metadata>.
2. Jarod Owens, ‘No Protection for Bloggers from Metadata Laws Rules George Brandis’, The Australian (Online), 17 March 2015 <http://www.theaustralian.com.au/bus...-george-brandis/story-e6frg996-1227265808805>.
3. Ben Grubb, ‘Legislation to Define Exactly What Metadata Will Be Stored for Law Enforcement and Spies’, The Sydney Morning Herald (Online), 27 August 2014 <http://www.smh.com.au/digital-life/...w-enforcement-and-spies-20140827-1094su.html>.
4. Ibid.
5. See above n 2.