With a minor concession to secure Labor's backing and a none-too-convincing assurance from Tony Abbott that the media had nothing to fear from it, the federal government's bill to amend the Telecommunications (Interception and Access) Act 1979 passed through the House of Representatives on Thursday. Senate approval and vice-regal endorsement for the bill to compel internet service providers to retain all metadata – the electronic "footprint" created whenever an individual accesses the internet, sends an email, or makes a telephone call – for two years now appears a mere formality.
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As the 1979 TIA Act indicates, police and security agencies already have powers to intercept and monitor all telecommunications, but there is currently no requirement for internet service providers or content service providers to routinely retain communications data for purposes of law enforcement or national security. This amendment bill will require ISPs and CSPs to keep any or all such data and to hand it over to the relevant agency when directed to do so. Only where an agency like the Australian Federal Police is seeking to access a journalist's sources as part of an investigation into, say, a cabinet or executive leak, will a warrant be required – the concession successfully demanded by Labor of the Abbott government for its supporting the bill.
The debate about metadata has been considerably muddied by confusion about its meaning, and how far the term extends. Mr Abbott's comments that "there were no metadata protections for journalists" when he worked as a journalist and that therefore reporters shouldn't worry about spy agencies and police accessing theirs is illustrative of embarrassing ignorance. Police and intelligence agencies have long been able to monitor phone conversations or access the call logs (another form of metadata) telcos. The advent of the internet and universal mobile phone communication has, however, greatly enhanced the ability of security agencies to surveil, and on a mass scale if they so desire.
Computers are now capable of scanning telephone call logs to identify not only to whom a particular individual has talked but everybody they've ever conversed with, out to four or five degrees of separation. The data centres of internet-related service providers like Uber, Google and Yahoo contain detailed records of email and phone correspondence (as well as their contents) which websites their customers have visited, and where they have travelled or shopped. These treasure troves of metadata have proved irresistible for organisations like the United States National Security Agency, particularly since governments have been slow to establish robust legal frameworks. And, as whistleblower Edward Snowden revealed, even when governments catch up to the moral, legal and ethical challenges posed by technological change, agencies like the NSA continue to bypass warrants and executive authorisations.
Metadata has the potential to greatly enhance police investigative powers. However, as the AFP submission to last year's inquiry into metadata retention by the Parliamentary Joint Committee on Intelligence and Security conceded, much of its value derives "after the fact", when a snapshot of events immediately before and after a crime is being assembled, and when decisions are being made about which leads or suspects to follow up. Little concrete evidence has emerged of metadata's value in the prevention or circumvention of crime, or indeed of serious terrorist attack. The United States government, for example, has not cited a single case in which analysis of metadata has actually stopped an imminent terrorist attack, though it's possible such successes have been hushed up for operational reasons.
The downsides to metadata retention have not been dwelled on much by the Abbott government, but they are noteworthy. The potential erosion of the right to individual privacy is the most obvious of these, even though it could be argued that Australians have willingly opened up their private lives to an unprecedented extent through their addiction to social media and the internet. Cost is another: the secure storage of this metadata will cost tens and perhaps hundreds of millions dollars. Most worrying of all, the creation of ever larger data stores will greatly increase the risk of accidental or criminal breaches of privacy.
A definition of metadata that excluded unauthorised access to "private communications" would have assuaged such fears. Instead, concerned Australians will have to make do with vague assurances that risks of metadata retention are so insignificant as to be trifling.
