Calls for inquiry into metadata breach
Independent senators, academics and privacy advocates are demanding a parliamentary inquiry be launched to investigate how an officer of the Australian Federal Police illegally obtained a journalist’s phone records through the government’s metadata retention regime.
by Mitchell Bingemann | The Australian, May 1 2017
On Friday the AFP revealed that one of its officers had unlawfully accessed a journalist’s metadata without obtaining a “journalist information warrant”, a requirement since 2015.
The investigator accessed the call records of a journalist suspected of receiving leaked internal information from within the enforcement agency. The incident is now being investigated by the commonwealth Ombudsman.
Independent senators, including Nick Xenophon and the Liberal Democratic Party’s David Leyonhjelm, have called for a parliamentary inquiry into the breach, saying other agencies that have flouted the rules must be brought forward and investigated.
“This has had a chilling effect on every journo in this country and anyone who cares about a robust free press,” Senator Xenophon told Media.
“If Senate estimates doesn’t get to the bottom of this then we should have a parliamentary inquiry to deal with the many issues and get answers on how the hell this debacle occurred and the implications on free press in Australia.”
The government’s metadata scheme has been fraught with controversy since passing into law in 2015. The scheme forces telecommunications companies, including Optus, Telstra and Vodafone, to retain metadata about their customers, including the time, identity, billing information, general locations and IP addresses of the senders and recipients — but not the content of communications.
The government passed the controversial metadata laws on the premise they were needed to target organised criminals and terrorists who use telecoms services and applications to plan and carry out their activities.
But media and communications law expert Peter Bartlett, who is the chair of the University of Melbourne’s Centre for Advancing Journalism, said the breach exposed the inherent flaws in the data retention regime, which are now a “huge concern” for all journalists and their sources.
“The fact that those restrictions have not been properly put in place really brings into question the arguments put forward in favour of this data retention regime in the first place,” he said.
“Parliament should simply not have passed this law if they knew how easy it was to breach. The more worrying aspect is that we might know about this breach but how many other agencies have done the same thing and just not reported it.”
“The government should, as a matter of urgency, publicly disclose how many applications are made for this type of access of data using proper process and who is the responsible authority to inquire to if other inappropriate access has been made.”
Senator Leyonhjelm echoed Mr Bartlett’s concerns, saying the breach showed that agencies were simply dipping into metadata to save themselves from embarrassing leaks.
“Using these metadata laws to track down internal leaks is not what these laws were intended for and nor is it a reasonable use of police power. This clearly shows that the case for mandatory retention of metadata has not been made,” Senator Leyonhjelm said.
“It’s impossible to tell what other agencies under similar circumstances might have kept similar breaches under wraps and indeed might even be doing so today.
“I can only imagine that what we are seeing here is just the tip of the iceberg. I think this will be the first of what will be a steady torrent of misuse and improper access of metadata by agencies just because the data exists. It’s a honey pot for snoops. It’s essential we have a proper inquiry into how this was allowed to happen and to find out how deep it might go.”
AFP commissioner Andrew Colvin on Friday said the breach occurred when an investigator accessed the journalist’s metadata without realising they were required to obtain a warrant.
“This was human error. It should not have occurred. The AFP takes it very seriously and we take full responsibility for breaching the act,” Mr Colvin said.
The AFP has moved to amend its procedures to prevent similar breaches. Under those changes, training will be bolstered and access to metadata will be restricted to a select group of senior officers.
The journalist in question had not been told their data had been accessed because of sensitivities around the ongoing investigation.
Asked if the unlawfully obtained phone records would still be relied on to inform the actions of investigators, he acknowledged the records could not be “unseen”.
Senator Xenophon, however, said this was not good enough and unless the investigation related explicitly to national security matters, then the journalist whose metadata was accessed should be told and any ongoing investigation be immediately quashed.
“If this is about a whistleblower that might embarrass AFP then they need to immediately abandon this investigation,” Senator Xenophon said.
“The AFP also needs to commit to advising the journalist subjected to this breach. The AFP admitted it can’t unsee what was uncovered here so they need to seriously consider abandoning any case against the alleged leaker and the journalist.”
Labor legal affairs spokesman Mark Dreyfus criticised the “shocking” breach but his spokeswoman yesterday said it was yet to determine if a parliamentary inquiry was needed.
“Senator Brandis and Mr Keenan are still nowhere to be seen, and have not disclosed the extent of their knowledge of the metadata breach,” she said. “We need a full explanation from these two ministers as a first priority.”
Attorney-General George Brandis defended the metadata legislation, but has declined to comment on the breach itself, saying it was a matter for the AFP.
