Ahead of the zeitgeist on metadata

Data security and retention are very much in the news at the moment. Indeed the Abbott government’s data retention bill is currently being debated by the Senate and will inevitably be passed given that the Coalition did a deal with Labor whereby the latter will support it in return for inclusion of a fairly weak requirement for a warrant before law enforcement agencies can access journalists’ metadata. Richard “Justinian” Ackland published an article yesterday that highlighted the deficiencies of the warrant regime in the current bill.

I can modestly claim to have been ahead of the zeitgeist on this issue, having made a submission and given evidence before the Senate Standing Committee on Legal and Constitutional Affairs way back in 2010, when they were considering the bill which eventually gave rise to the current journalists’ qualified privilege or immunity in relation to disclosing confidential sources when giving evidence in court. As I argued at the time:

In other words, s178 as it presently stands allows any law enforcement agency to access the records of any journalist whenever it sees fit for the purpose of investigating any suspected breach of the criminal law however trivial, including an alleged breach of the criminal law consisting solely of the act of “whistleblowing” to a journalist itself. Police, public servants or teachers who “leak” to a journalist will almost always be committing some sort of offence against relevant public sector legislation by doing so. The public interest value of allowing journalists a qualified immunity from being forced to disclose sources before a court will be significantly undermined or even negated if law enforcement authorities have a largely unchecked ability to access journalists’ telephone and other records to identify the “leaking” public servant by “back door” means.

I even suggested that the proposed journalists’ qualified immunity (and inferentially requirement for a warrant to access metadata) should not just apply to journalists:

In my view there is no persuasive reason why the protection of the proposed presumption/qualified immunity should be confined to journalists as opposed to other relevant professionals whose work may give rise to relationships or situations of confidence. Indeed as Kirsty Magarey observes in the Bills Digest, other professions such as doctor/patient, nurse/patient, psychologist/client, therapist/client, counsellor/client, social worker/client may involve formal Codes of Ethics the breach of which can result in professional disciplinary proceedings whose outcome may include striking off or deregistration by the relevant professional licensing body. This is not so for journalists.

Accordingly I was pleased this morning to read that Independent Senator David Leyonhjelm is now proposing that authorities’ access to all citizens’ metadata should require a warrant. The bill should also be amended to tighten up the deficiencies in the warrant provisions identified by Richard Ackland. That isn’t likely to happen given the unholy deal done between Labor and the Coalition, but we can always hope.