Wire taps are Nixon, metadata Putin. Spies ain’t what they used to be, just ask the journalists

Retro is perhaps not the most weighty word that comes to mind in Donald Trump’s “Obama-tapped-my-phone” brain outage.

Absurd. Florida. Scary. All popped up.

But to avoid falling down the Watergate wormhole for no apparent gain, it is worth noting that wire taps are so passé. If Obama had really wanted to know stuff, Mr President, he’d be after your metadata.

That’s what the spies go after when they are trying to reveal a journalist’s sources. Metadata tells you so much more than who said what about whom. It’s the juice.

Wire taps are Nixon. Metadata is, well, Putin.

A good dive into the metadata will tell you all sorts of things about the ‘source’ and his or her digital footprint. It can lead a good spook to dates, times and people — not simply what you and someone else are blathering on about on the phone.

And it is far quicker. Put it this way: there is a reason The Wire needed five seasons.

So, Mr President, just in case the FBI isn’t talking to you about how powerful an ally Twitter really can be, there’s a friendly place to come on down to find out all about it. Yup, it is Australia. We are not only one of America’s closest mates, we’ve also been cranking up special laws on metadata.

Last week, the nation’s top domestic spy boss indicated his agency had used new metadata legislation to obtain vital information about the activities of journalists.

Duncan Lewis, the head of the Australian Security Intelligence Organisation (ASIO), wouldn’t say how many times or who or why. It was a small number, he said.

“The numbers are small and a simple exercise in deduction would start to throw light on the investigations that are currently underway,” he said.

He kept talking about journalists as being a “class of people” under the relevant legislation. (How nice to be special.)

Despite repeated questioning, Lewis would not say how many of the class had been singled out for special attention.

“I am just not prepared to go there,” he replied to Senator Nick Xenophon, who has a special interest in media freedom.

The full transcipt of the exchange can be found here.

So, that’s okay then? Nothing to see here. Move along.

Well, no.

Small or otherwise, the truth is that Australian journalists are now subject to a new form of surveillance, known as Journalist Information Warrants (JIWs). They have been in place since late 2015 but thanks to Lewis (or should that be Xenophon) we been told a number have been issued.

The scary thing about JIWs is that ASIO can simply ask Australia’s Attorney General for permission to obtain a warrant. In fact, if the AG is too busy, the head of ASIO can issue them him or herself if they are convinced national security is at immediate risk.

The journalist and publisher does not know what is going on in either scenario. They can’t object to what is happening to their data. They are in the dark at every level.

The story has become even darker, with one very experienced and connected political journalist suggesting that Federal government — in the form of the A-G — has actually not issued any JIWs.

Samantha Maiden, from Sky News, is adamant the government hasn’t issued any JIWs. If that is so, there are, she says, two options: one, that ASIO was being “tricky” in its evidence — that the “small number” is actually zero. Or, alternatively, ASIO, citing an emergency, had bypassed the Attorney General and secured its own warrant.

If the former is true then the head of ASIO appears to have misled the Senate; if the latter, the spy agency has actually accessed a journalists metadata and not told the highest legal officer in the land about it.

Both options raise further questions, but spies being spies, they are not revealing any details. For his part, Xenophon has told Maiden that zero is not a number.

That any JIWs have been granted is a matter of public importance — and not just for journalists, but to anyone who cares about press freedom and the role of the media in democracy. Here or elsewhere.

ASIO is not the only agency that can discover sources of information armed with these new warrants.

Introduced via amendments to the Telecommunications (Interceptions and Access) Act 1979, these new data retention laws give 21 government agencies the power to seek information about journalists’ sources — all without the journalists or their employers knowing about it.

Unlike ASIO, those agencies do have to apply to a Federal Court judge for a warrant.

The only official friend of the journalist — and their whistleblowers — in cases of these new warrants is the public interest advocate (PIA).

There are two of them, both retired judges. The PIAs were a last-minute concession as the amended act passed Federal Parliament with bipartisan support.

They are meant to make arguments about whether the disclosure of the journalist’s source outweighs the public interest in protecting source confidentiality.

But as far as I can make out, the PIAs are pretty well MIA.

They can’t talk to their “clients” about what they are doing, let alone let the public know. We simply don’t know how the PIAs are faring.

Just how busy are they knocking back requests to reveal the sources of journalists? Would the words “small number” again be applied?

We do know the first two PIAs had no experience in media law or journalism.

The trouble is, we simply don’t know what is going on — and no one in the Federal government appears compelled or inclined to let us know.

This is part of the greater malaise — a malaise that will only end, if it can, if journalists, publishers and their audiences start worrying about the gradual erosion of our democratic freedoms.

We worry about the Twitter rantings of Donald Trump. But in this country there is a sustained attack happening on the freedom of the press.

It is incumbent on journalists and anyone interested in freedom of speech to explore ways of monitoring their impact on public discourse. There are some excellent ventures underway. There needs to be more.

A final point. Dismissing Donald Trump — and others who seek to diminish the media’s role in democracy — as Sideshow Bobs is a gross mistake. Just think what he and his ilk could do (or is doing) by tapping into your metadata.