More metadata musing

In answer to my post earlier today about the data retention bill, frequent commenter Patrick Fitzgerald made a rather important point about the data retention zeitgeist:

Embrace the panopticon Ken, buy yourself a webcam, attach it to your head and stream live 24×7. Plus for good measure get a fitbit with GPS and stream that live 24×7 too – that way at least your friends will know as much about you as your enemies, and you may kill at least one enemy through boredom ;)

As it was, I had already made pretty much the same point earlier in the day on Twitter in answer to a tweet from FOI guru Peter Timmins linking an article about the US situation regarding metadata retention.


The zeitgeist of concern about the new metadata retention law and its inadequate protection of privacy even for professions like lawyers, doctors and journalists whose ethics and professional practice centrally depend on honouring confidentiality, is one that isn’t widely shared or even understood.

The vast majority of people in the early 21st century don’t appear to give a fig about the privacy implications of the Internet, Google, mobile telephony, and social media platforms like Facebook, Instagram and Twitter. Most seem perfectly happy to display their entire lives to the world in an almost narcissistic way, apparently seeing loss of any meaningful notion of private space as an acceptable price to pay for free 24/7 social interconnectedness.

In that Brave New World, the privacy concerns of people like me probably seem like the outdated carping of a silly old codger, and perhaps they are.  Contrary to fashionable human rights discourse, there is no such thing as a “fundamental” or “inalienable” right. Rights are human social constructs. If very few people support a particular asserted right, whether a right to privacy or something else, then it is at best vulnerable. Where most people see much greater benefits in the extraordinary social connectedness that modern online technologies deliver than in insisting upon workable legal protections for values like privacy and confidentiality, the chances of such laws being enacted are minimal.

And when the corporate sector sees mega-profits in exploiting the vast quantity of metadata we are more than happy to give them, the probability of effective regulation becomes vanishingly small. Hence the ALP’s cynical compromise with the Abbott government, where it is happily waving through the data retention bill in exchange for an almost meaningless amendment requiring a warrant before journalists’ metadata could be accessed.  Broad-based data retention laws are presented as an antiterrorism measure, and an ambitious politician like Bill Shorten can’t afford to be seen to be weak in the War on Terror.

There are huge potential benefits in collecting large amounts of data about people’s lives, but there are also huge dangers which should be self-evident but apparently isn’t to most people.  One of these days there will probably be a belated ground swell of community demand for more appropriate and balanced regulation of the ways in which digital information about us can be used. In the meantime, those with something to hide or a practical principled objection to ubiquitous government and corporate invasion of every aspect of our lives will be forced to rely on encryption, virtual private networks and other technologies designed to inhibit the intrusion of Big Brother.

Fortunately, I am indeed an old codger getting towards the end of my working life. I don’t have anything much to lose or to hide because I don’t have either the energy or desire to get up to much mischief these days, and I can’t be bothered going to the effort of implementing encryption and other methods which might effectively protect my privacy. However that isn’t true of most people under the age of 40, who ironically are also the most enthusiastic users of social media and mobile telephony. Not my problem, but it’s still a fascinating social and legal phenomenon to observe.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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8 years ago

From what i’ve seen the practice doesn’t actually poll well at all, clearly a number of people don’t rate it as a drastic concern or a vote changer but there doesn’t seem to be widespread support for data retention in the same way there is for say current drug policy.

I guess the danger is we’ll never learn about the inevitable scandals given the disgusting level of secrecy and the institutional support for these laws.

8 years ago

It’s the “whatifs” that worry me. Whatif in X no. of years a government of fundamental religous fervor reaches power. Naturally, declares any women that has connected to a birth control centre in the past, must have had a termination, and by definition has committed murder.
A metadata link to that “birth control centre” will be treated as prima fasciae evidence that woman has committed murder. There are many other “whatif” scenarios possible from a malevolent government. Benevolent government is a fortune that can no longer be sen as a “given”.

steve from brisbane
8 years ago

Ken, the reason I can’t personally work up a sweat about this is because, surely, use of the internet has surely always carried the possibility that a bored or mischievous employee at the service provider could snoop into your private life. Particularly in the earlier days where there were a multitude of small ISP’s, where internal controls may have been weak, it was just always safe to assume that interests in specialised porn, arranging clandestine meetings, or emailing journalists with hot leads about a politician’s personal life could be thrilling some nerd at your ISP unless you took particular care with encryption.

In fact, the discussion of mandatory retention has disclosed that a great many bodies were already accessing metadata, and if the government regulation of the field means that fewer can have the kind of unfettered access that they have previously been enjoying (and I think that is the case, last I read) then these laws may in fact be good for privacy in that respect.

If people with “on principle” concerns about privacy have pretty ready means to avoid having metadata tracked, they can use it. But we all know the criminally inclined aren’t always the brightest, and I would assume that most of them will not cover their tracks well.

The rest of the population can continue what they have always done, and assume that sheer volume of material flowing through the net gives them a de facto form of “privacy”, which they don’t value that much anyway.

steve from brisbane
8 years ago

Sorry about over the over surely-ing.

steve from brisbane
8 years ago

I should stop while I am behind…

8 years ago

I for one am genuinely torn. On one hand my comment, featured by Ken, is one realistic alternative. It is effectively what Steve suggests and also what many many people actually choose.

But I can’t help but wonder if I should buy an open source phone (of course owning a mobile phone is already renouncing your privacy) use a private vpn and proxy service, use zendo for messaging…. The cost of any real privacy is, today, very high.

It is easy (enough) to keep the content private, if there is no one with a substantial pecuniary or state interest in discovering it. But most people don’t get even near that, and as the meta data debate shows, that is only sham privacy.

I think that, for good or for bad, the panopticon has already won and we are haggling over the details.