The balance between the power of the State and the rights of individuals has suffered a blow with the passage of the Telecommunications (Intercept and Access) Amendment (Data Retention) Bill 2015. The Bill obliges Australian telephone and internet service providers to retain certain data about the telephone and internet use of every Australian who uses a phone or the internet. The scheme affects the right to privacy, freedom of association and other rights protected by duties of confidentiality.
Right to privacy
The data retention scheme infringes the most basic privacy protection – don’t collect what you don’t need. By mandating the retention of data about every user of a telephone or the internet in Australia, the government is requiring private companies to collect lots of information that the companies don’t need and the government will probably never need.
Australian telephone and internet service providers will be required to retain data about:
- who you call or email;
- when you make calls or send emails;
- how long you speak for; and
- where you and the recipient are when you send/receive the call/email.
Telephone and internet service providers will not be required to store the content of the calls, emails or your internet browsing history. But that doesn’t matter – as the General Counsel for the United States National Security Agency has said “if you have enough metadata, you don’t really need content”.
From the retained data, law enforcement agencies will be able to draw inferences about where you live, work and play; who you vote for; what medical conditions you have; and, if you’re contacting a lawyer, what litigation strategy the lawyer is developing on your behalf.
There are few privacy protections in the Bill. Law enforcement agencies can access the data without a warrant – unless they’re seeking to access a journalist’s data in order to find out their sources. Before accessing the data, law enforcement agencies have to consider whether the privacy intrusion is justified – but how will we know if they considered it? The Parliamentary Joint Committee on Intelligence and Security recommended that a mandatory data breach notification scheme be introduced – but did not require such a scheme to be introduced before the Data Retention Bill passed. The telephone and internet companies have to keep the data for at least two years – but there is no limit on how long they can keep it after that time.
This scheme intrudes on the privacy of every internet and phone user – collecting information is an intrusion of privacy, even if it is never used. That’s why the Australian Privacy Principles regulate the collection of information, as well as its use and disclosure.
Freedom of association
By accessing the retained data, law enforcement agencies will know who you know – who your friends are, who your family is, who is in your community or activist group. The freedom of association is undermined if government can monitor whom you’re meeting and when. We don’t live in a surveillance or police state, where government monitors our movement or meetings with like-minded people – but the data retention scheme has provided the infrastructure and tools for any future government minded to turn its hand to it.
Other rights protected by duties of confidentiality
Duties of confidentiality protect the client who visits a lawyer, the patient who visits a doctor, the whistleblower who talks to a journalist. These duties protect rights to access justice and healthcare, as well as the freedom of expression. Those rights will be undermined by the data retention scheme.
Law enforcement agencies will know when you have contacted a lawyer or doctor. The type of lawyer or doctor contacted can reveal further information, such as the nature of your legal or medical problem. Who the lawyer contacts next can reveal which witnesses are being called or other information relevant to a litigation strategy. Who you or the doctor contacts next can reveal further information about your medical condition – is it something that requires surgery or palliative care?
Duties protecting confidential information exist so individuals feel free to exercise their rights to access justice and healthcare and to express themselves by talking to journalists. Knowing that data about our calls to doctors, lawyers and journalists is being retained for possible future access by government agencies will have a chilling effect and undermine the purpose of those duties of confidentiality.
It didn’t have to be this way. The government could have designed a scheme that preserved the information used by law enforcement agencies and didn’t treat us all as suspects. Instead, we have a scheme that allows the government to know all about us. Every call you make, every move you make – who’ll be watching you?
Katie Miller is the President of the Law Institute of Victoria.
Feature image: g4ll4is via Flickr.