By Nayomi Naranpanawa
State surveillance is no longer a question of if but how much. Until Edward Snowden released classified government documents in 2013 revealing mass surveillance programs by US and UK state security agencies (Greenwald, 2013), like many others, I asked who would possibly want to trace my metadata?
Metadata are the descriptors of a communication, such as when it was made, by and to whom, from where, and its size or duration. The Australian Government frequently categorises metadata as less intrusive then the contents of a communication in order to justify warrantless and lenient state access (Griffiths, 2014). However, the classic analogy that metadata reveals only as much as the information on an envelope is not so robust. As telecommunications have proliferated, so has the variety and specificity of metadata (The White House, 2014: 2). By implication, metadata samples are now more insightful. The demarcation between content and non-content data is also fading (Brew, 2012: 5). For instance, with a sufficient spread of a person’s emails, phone calls and Internet connection history, Australian government agencies can deduce significant information about a person’s activities and affiliations (see, eg. Donohue, 2008: 267).
The issue is not so much that the state can access metadata. Metadata is often a preliminary source of intelligence in criminal investigations, and serves a greater public purpose that often justifies covert state access. Rather, a persisting issue is the way in which metadata has been framed under the Telecommunications (Interception and Access) Act 1979 (TIAA), which allows state metadata access in Australia by way of a senior officer’s approval. The TIAA refers to metadata as telecommunications data. Other than a general prohibition against the disclosure of the ‘contents or substance of a communication,’ telecommunications data is undefined. The rationale is that technological neutrality preserves the flexibility of the TIAA, allowing it to evolve with technological advancement (Nicholls and Rowland, 2008: 349).
While the Federal Government’s proposed 2-year mandatory data retention scheme pertains to a prescribed set of metadata, it does nothing more than establish a minimum dataset for retention by telecommunications service providers (TSPs). It does not prohibit the retention of specific data nor does it actually restrict the type of metadata government agencies can seek under the warrantless access regime. Hence, although the Data Retention Bill may not require the retention of Internet history or the intermittent stream of smartphone location data that is unrelated to the making of communications, it is plausible that government agencies could still access this data in the timeframe it is normally held by TSPs for purposes like billing.
This blank canvas enables senior government officers to draw the parameters of what constitutes metadata under the TIAA. However, they are not the most suitably placed to make this judgement call given their proximity to investigations where metadata is sought. Without a statutory definition or contemporaneous external scrutiny, the question of how much state surveillance is permitted under the metadata access regime is one that remains in the state’s hands.
Nayomi Naranpanawa completed a Bachelor of Laws (Honours) and a Bachelor of Arts (Psychology) at La Trobe University in 2015. She completed her honours thesis on Australia’s metadata access regime.
Brew, Nigel, ‘Telecommunications data retention – an overview’ (Background Note, Parliamentary Library, Parliament of Australia, 2012).
Donohue, Laura K, The Cost of Counterterrorism (Cambridge University Press, 1st ed, 2008)
Nicholls, Rob and Michelle Rowland, ‘Regulating the use of telecommunications location data by Australian law enforcement agencies’ (2008) 32 Criminal Law Journal 343.
Nayomi Naranpanawa, ‘The Mega Metadata Debacle’, Law and Justice, 18 March 2015 (La Trobe Law School Blog, http://law.blogs.latrobe.edu.au/ )