WhistleOut's submission on the use of metadata in civil lawsuits and why you should care

22 December 2016

As we approach Christmas, the Attorney-General's Department quietly announced a review into Australia's mandatory data retention laws that could see metadata opened for up for use in civil lawsuits.

Mandatory data retention laws were originally said to be about national security and serious crime. The use of metadata in civil lawsuits would be a clear-cut case of scope creep, and would see the personal information of Australian citizens used by litigants who seek to protect private, not public interests. We see this as an unwarranted and unnecessary threat to the freedoms and privacy of everyday Australians.

The Attorney-General's Department has asked for the public to comment on whether metadata should be access as part of civil lawsuits. As staunch supporters of internet privacy, we at WhistleOut wanted to ensure that we’re part of this conversation.

You can read WhistleOut's submission to the Attorney General's Department below:

Submission on the use of retained data in civil proceedings

WhistleOut Australia believes data retained under the metadata retention scheme should not be accessed by civil litigants. Allowing this data to be used in civil lawsuits represents unnecessary scope creep that was consistently denied when the legislation was under debate, and is unwarranted infringement on the privacy of ordinary Australian citizens.

Privacy allows us to maintain our individuality and autonomy. Without privacy, we don't have anything for ourselves. We lose the ability to make mistakes, to have our own ideas, to go against the grain.

Proponents of the mandatory data retention scheme continue to argue that a user's communications aren't stored, just the "metadata". That is, the sender, the recipient, time, date, and duration. However, metadata can be even more telling than the contents of a communication. When you talk with someone you can lie, you can use code, but it's far harder to obfuscate the metadata.

A phone call made to the number of a divorce lawyer still provides meaning, even when you don't know what was discussed. The meaning you can derive from metadata increases when this information is available in bulk. If someone received a phone call from a doctor, then followed it up by making a call to a psychologist, sensitive medical information is revealed without the need for the communication’s content.

If sensitive data continues to be stored for the purposes of national security, access to it should not be treated lightly. Criminal or national security matters are no doubt serious, and we accept departures from our liberal democratic norms to ensure that severe wrongs can be dealt with appropriately. It's one thing to have police and federal government agencies inspecting records for counter-terrorism and the prevention of serious crime, it's very different to have these records open to inspection by civil litigants who happen to think they might contain useful information for their case. 

Metadata collection is indiscriminate by nature.  It collects information on all communications, whether relevant to a civil matter or not. For criminal investigators access to such a broad scope of information may be important, but for civil litigants who seek to protect private, not public interests, it is not. If this pool of data is opened for civil litigants, the freedoms we enjoy as Australian citizens in a liberal democratic society will be undermined. 

Amending metadata rules would facilitate further legislative scope creep. "If the litigators have access, why don't I?". More groups will want a slice of the pie, more information will be retained, and everyday Australians will see their privacy eroded. The National Measurements Institute, Bankstown City Council, Greyhound Racing Victoria, the Western Australian Department of Fisheries, and the RSPCA have all applied for ongoing access to telecommunications data under the legislations existing scope. By enlarging the number of matters in which retained data can be used, it is inevitable that greater numbers will request access. Increasing the number of people with access to this sensitive data increases the potential for misuse.

As it stands, data retention sits on a slippery slope; it becomes akin to mass surveillance with even the slightest push. We believe it is possible to balance privacy and security without corroding our liberties.

Metadata retention is the collection and archival of everyone's communications, regardless of whether one is suspected of wrongdoing. It treats every Australian as a potential miscreant. While it's easy to argue that "you don't have anything to fear if you've got nothing to hide", this is a flawed premise. By monitoring everyone's personal communications, you inherently treat Australia as guilty.

When you treat everyone as guilty, you change people's behaviour. You create doubts about exercising the freedoms we have available to us as Australian citizens. This could include engaging in activism, communicating with anyone who has even a slight chance of becoming a person of interest, participating in non-violent protest, or self-censoring opinions. In turn, this undermines our democracy, stifles ideas, and restrains innovation.

Notably, while the goal of data retention is to prosecute criminals, the way in which the scheme is implemented hurts the privacy of law-abiding Australians the most. If you want to commit a crime and have a modicum of technical knowledge, there are countless ways to prevent your data from being collected. It can be as simple as sending an iMessage rather than a text, or using a Gmail account rather than an email address provided by an Australian telco.

WhistleOut Australia is strongly opposed to expansion of the access to information retained under the mandatory data retention scheme.  We consider it to represent an unnecessary and unwarranted threat to the freedoms and privacy of everyday Australians. We'd like finish by reminding you of some words from our Prime Minister and former Communications Minister, Malcolm Turnbull.

"Surely as we reflect on the consequences of the digital shift from a default of forgetting to one of perpetual memory we should be seeking to restore as far as possible the individual's right not simply to their privacy but to having the right to delete that which they have created in the same way as can be done in the analogue world."

Alex Choros, on behalf of WhistleOut Australia

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