George Brandis

I expect your life has not felt remotely impacted by the change to the law that now requires your telco and internet service provider to retain all of your electronic metadata for two years. Partly that’s because most of them aren’t actually doing it yet, but mostly it’s because we’re not a police state … yet. [Insert terrifyingly resonant Orwell quote here.]

Truth is, the loss of personal freedoms tends to be a phenomenon only faintly detectable, and only if you’re looking out for it, with the closing irony that, when we start to notice, it’s too late. I’ve pretty much given up on the dark warnings; I figure that sardonic musings will have a better chance of being quoted with admiration, come the next post-fascist period of future history.

So, continue to worry not about the fact that the proliferating enforcement arms of government will have free access to a digital map of your every move forever more, once they get the algorithm sorted, and all in an optimally hackable form. Let me scare you today with a prospect which might seem a little less remote in our sleepily eternal democracy than that of the knock on the door in the night.

When the data retention law was negotiating its way through Parliament and the media belatedly got all excited about journalists’ phone records being used by the cops to trace their sources, an at least equally outrageous loophole came screamingly close to becoming law. It was closed off only in the final amendments to the bill. However, there’s a toe still in the door and powerful forces are pushing.

[Brandis’ data retention Christmas gift]

What almost happened was that all of the data now compulsorily collected and stored would have been, like any other store of information, susceptible to being discovered or subpoenaed in civil court cases. The courts have open-ended power to order or allow parties to litigation to obtain documents and other material (including electronically stored information) from each other and any third party, if it might be relevant to the case. This power can only be overridden by legislation.

The current form of the data retention law says that the data can’t be accessed for civil litigation. However, a back door was inserted allowing for exceptions to the blanket rule to be made by regulation.

Ever so quietly, the Departments of Communications and the Attorney-General have issued a consultation paper, calling for submissions on the idea of opening back up the possibility of the retained data being available to the civil courts. It’s clear from the wording of the paper that the government is favourably disposed; it refers to “the risk that restricting parties to civil proceedings’ access to such data could adversely impact the effective operation of the civil justice system, or the rights or interests of parties to civil proceedings.”

Yeah fair enough, why should this extra bit of data be sacrosanct, when parties can already trawl each others’ social media accounts, use private investigators to secretly film each other and subpoena their bank records and personnel files? Isn’t this the same tired privacy argument as the one that would prevent the police from tracking you via your sim card or your car’s GPS when it’s only the crims who really have anything to fear?

The quaint confidence we continue to hold that we’re all safe from excessive state intrusion so long as we’re not actual terrorists is irrelevant when it comes to civil litigation, which is a very different beast altogether. At least the criminal law still offers some basic, albeit eroding, protections like habeas corpus, the presumption of innocence and the evidentiary burden of “beyond reasonable doubt”. None of that applies to civil claims.

Most people haven’t been a party to a civil case. However, their chances of being so are many times greater than their risk of getting caught up with the cops. Might be a neighbourly dispute, a wrongful dismissal claim, a fight with a business partner, a divorce, a contested will, a debt you really don’t owe. Anyone can sue anybody in the civil courts. The bar is exceedingly low, and the outcome is decided on the “balance of probabilities”. That’s a resolution, not justice, and it’s all civil litigation is designed to deliver.

Once you’re in court, you’re in a public forum. Open justice demands public access to the goings-on of civil cases, with few exceptions. When your underwear drawer is being emptied in open court, it’s not a nice experience.

[Don’t mention the data retention]

Speaking as a lawyer, I’m pretty excited by the prospect of all that lovely metadata. The ability to reconstruct the physical and electronic movements of a witness or party, using the timeline of their calls, texts, emails and online interactions, is enticing. The retained data includes who you contacted, when, for how long, which mobile towers you were bouncing off at the time.

Of course insurance companies would love to be able to track your trips to the gym; IP owners would delight in your online history to prove your track record of infringement. The government is clearly being lobbied to deliver on those desires.

And there’s a compelling argument, which, at base, is the same one always used: who but the liar has anything to fear from the truth? If your metadata tells a story at odds with the one you put in your witness statement, shouldn’t you be found out?

I get that, really I do. In the criminal context, we’re all becoming more and more comfortable with what now seems natural whenever something bad happens: the police’s ability to access CCTV, dashcam footage and social media to track the offenders. Along with that, we feel the frustration from each gap in the available camera angles. To take a simple example: CCTV cameras across the street placed Roger Rogerson and Glen McNamara at the self-storage unit where Jamie Gao was murdered; a camera inside the unit would have saved a lot of time and money by resolving for sure which of them fired the fatal shot (since they elected to blame each other).

At one level, it’s annoying not knowing the truth simply for want of a bit more data, when that could be easily arranged. In the race to prevent crime or terrorism, almost fair enough (but not really — insert encroaching police state warning here).

Not the same at all for civil litigation. We should be a billion times slower to agree to give up what remains of our personal privacy in the name of fact-finding for the purposes of resolving civil disputes.

Still, I expect the regulation will sail through as we sleep, soundly as a child.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey