Fishing for metadata aims to net sources

“We’re from the government and we’re not here to help you,” seems to be the underlying message of the data retention bill, writes Mike Dobbie. Cartoon by Lindsay Foyle

In 2012-13, Australians’ metadata was being disclosed to law enforcement agencies, including police forces and anticorruption star chambers, at a rate of more than 26,000 “authorisations” a month, according to the annual report of the federal Attorney-General’s Department. That doesn’t include disclosures provided to the Australian Security Intelligence Organisation (ASIO), whose access requests are kept secret. Nor does it include disclosures made on behalf of city councils, societies for the prevention of cruelty to animals, and other government departments and statutory authorities. But it does mean you don’t have to come under the gaze of Australia’s spy agency to have your metadata trawled through by government.

Politicians will tell you they can’t understand what all the fuss is about. Accessing metadata has been going on for years and all they are seeking to do with the data retention bill is introduce amendments to the 1979 Telecommunications (Interception and Access) Act. However 36 years ago, journalists and their confidential sources didn’t use smartphones, email and laptops.

The third tranche of the Abbott government’s national security laws focusing on data retention clearly aims to bring the old 1979 law up to speed and ensure carriers retain several years’ worth of data so government agencies can go time travelling into the details of Australians’ use of the latest digital technology.

The Media, Entertainment & Arts Alliance (MEAA), like many media organisations, told the parliamentary committee inquiring into the proposed amendments that entrenching and extending the reach of metadata disclosures is an attack on journalists’ ethical obligations to never reveal a confidential source. Clause 3 of MEAA’s Journalist Code of Ethics states that obligation clearly: “Where confidences are accepted, respect them in all circumstances.”

Lindsay Foyle, Press Freedom

Lindsay Foyle, Press Freedom

The ability of law enforcement and surveillance agencies to access journalists’ metadata means that journalists are powerless to protect any communication, whether a call or an email, with a confidential source. The net result is a chilling effect on important journalism, because if a whistleblower cannot trust the journalist to protect their identity, important revelations of wrongdoing, safety breaches, dishonesty, corruption and illegal activity may never come to light.

We know that in at least eight cases in 2014 journalists from the Guardian Australia and websites, and the West Australian newspaper, were referred to the Australian FederalPolice for investigation into their sources for news stories about the government’s asylum-seeker policies. Those stories were written as a result of the lack of information available after the Abbott government militarised customs and immigration through Operation Sovereign Borders.

We also know that in the Allan Kessing case in 2005 and also the 2007 case involving the Herald Sun journalists Michael Harvey and Gerard McManus, who refused to identify a source and were subsequently convicted of contempt of court, it is possible that journalists’ phone records were scrutinised.

Three months after the data retention bill was tabled, the parliamentary committee issued its report. Despite receiving 204 submissions, including from MEAA and many other media organisations, it still had not made up its mind about the press freedom implications of the amendment bill. It suggested holding a second inquiry. But in the meantime, the committee determined that the bill should be passed by the federal parliament – a puzzling move as it aims to enact flawed legislation in advance of fixing the flaws.

There was an added surprise in the committee’s recommendations. Just to ensure there were no misunderstandings, the committee spelt out that the bill would indeed be used to authorise “disclosure of information or documents… forthe purpose of determining the identity of a journalist’s sources”. For the first time, journalists are being told they and their sources will be deliberately targeted by the Commonwealth.

In short, every journalist is on notice that the government will use the bill to trawl through your metadata in order to hunt down your sources. It seems the championing of press freedom in the aftermath of the January attack on the offices of Charlie Hebdo has been quickly forgotten.

These assaults on press freedom aren’t confined to Australia. In Britain, three weeks before the committee released its recommendations, the UK’s culture secretary was insisting on amendments to that country’s Regulation of Investigatory Powers Act (RIPA) after it was discovered that over three years, more than half of Britain’s police forces had made 608 applications to trawl through journalists’ metadata with the aim of finding their contacts and their sources.

MEAA consistently called for a media exemption to be applied to all three tranches of national security laws because each has serious press freedom implications. The laws challenge the ethical obligations of journalists to never reveal a confidential source – a principle acknowledged and protected by the Commonwealth when it introduced shield laws to protect journalist privilege in 2011. Breaching these laws could carry jail terms of up to 10 years for both journalists and their sources.

Now the Data Retention Bill has seen the introduction of journalist information warrants and a public interest advocate. Regardless, our sources are still vulnerable and journalists must take steps to protect themselves and their sources. The tools of counter-surveillance may now become part of the regular working kit for most of us; tools that include anonymisation and encryption of your communications and computers so that you, your sources and your stories can be protected, so that you can continue to do your job.

In the battle to ensure news and information in the public interest can still be published and broadcast, courageous whistleblowers will seek out journalists to get the story told. But that won’t happen if journalists and their employers have their ability to operate compromised by agencies of government.

Mike Dobbie is the communications manager for the MEAA Media section

Lindsay Foyle is a past president of the Australian Cartoonists’ Association